Cpoyright Issues In Cyber Space.docx

PROJECT REPORT ON CYBER SPACE AND ECOMMERCE

COPYRIGHT ISSUES IN CYBERSPACE

Submitted To :

Submitted By :

Dr. Amita Verma

Sarita

Dr. Karan

1628/16

Tanmeet Mam

LLM 2nd Semester

UILS

UILS

Panjab University

Panjab University

ACKNOWLEDGEMENT I would like to thank all people who have helped and inspired me during my doctoral study. First of all, I treat it as my cherished privilege to respectfully thank Dr Amita Verma, Dr. Karan and Tanmeet mam, University Institute of Legal Studies (UILS), Panjab University, Chandigarh under whose expert guidance and supervision, the present study has been carried out. She has shown indefatigable zeal and enthusiasm through his valuable, fruitful and enlightening discussions. It is gladful for me to record my thanks to my friends, who helped me in completion for this presentation. Last, but not the least thanks to God for my life through all tests in the past years. You have made my life bountiful. May your name be exalted, honored and glorified. Sarita Roll no. 1628 L.L.M (2016-2017) Panjab University, Chandigarh

Table of contents  Introduction  International Law Relating to Copyrights  Indian Law Relating to Copyright  The Information Technology Act, 2000  Copyright Infringement in digital medium  Conclusion  Biblography

Copyright issues in Cyberspace 1. Introduction Information Technology is growing faster than any other communication vehicle in the history mankind. Invention of digital technology was the most important revolution in the last century. The global nature of internet has provided immense visibility to start up enterprises and medium size businesses on the internet to efficaciously showcase its products and services. After the advent of Internet most of the corporate Intellectual Property is held in the digital form as it provides affordable access of all the IPR resources to the public at large. However, internet has also made infringement of IPR , in particular copying of Copyright material easy and simple. Internet is being termed as the world’s biggest copying machine. India has specific legislations to deal with various kinds of IPR infringement however these legislations are not equipped to deal with some of the modern day copyright violations. The Copyright Act, 1957 prohibits reproduction of the copyrighted work in any material form including the storing of it in any medium by electronic means, by any unauthorized person but is incapacitated to deal with illegal duplication, importation, distribution and sale of pirated music as it becomes difficult to trace the location of information.1 In this scenario, where sharing of information among people has become the major function of the internet, the peer-to-peer file sharing services provided by various websites, linking, deep linking, framing and other innovations which have changed the way people share information over the world wide web, have given rise to a legal controversy. While the users downloading music, software, computer games and other copyrighted material are held liable for direct copyright infringement, the service providers go scot free as the existing Copyright Act has no provision for making a service provider liable in such a situation. The rapid dissemination of data over the Internet means that one has to spend a lifetime and fortune tracking down copies of the

1

Retrieved from visited on April 14, 2017 at 12.00 pm.

work that infringes those rights, indentifying the infringer and litigating in each concern jurisdiction.2 The protection to computer software is derived out of two Acts, the Indian Copyright Act, 1957 and the IT Act, 2000. While the Copyright Act grants protection to the computer program as it is granted to other forms of copyrighted work, the technological and complex nature of the computer programs calls for technically effective protection.3 The Indian Copyright Act, 1957 accords a special status to computer software as compared to other forms of copyrighted work. The Copyright Act regards the computer programs as literary works, and in addition to the general exclusive rights provided to other literary works, it grants extraordinary exclusive rights to the owners of the computer programs like right to sell or offer for sale, and the right to give on commercial rental or offer for commercial rental. The Act has also exempted computer programs from ‘fair dealing exception’ (i.e. private use for research, criticism or review of that work or any other work) which is available in case of other copyright works.4 The IT Act, 2000 provides for punishment for tampering with the ‘source code’ of a computer program but this protection applies to computer source codes ‘which are required to be kept or maintained by law for the time being in force’. Hence, the protection accorded by the IT Act is only for ‘source code’ of computer programs of government agencies and the ‘source code’ of computer programs of private users still stand unprotected.

5

2. International Law Relating to Copyrights International convention which deal with copyrights are as follows: 1. Berne Convention, 1886 2

Retrieved from visited on April 14, 2017 at 12.30 pm. 3 Ibid 4 Retrieved from visited on April 14, 2017 at 1.00 pm. 5 ibid

The Berne Convention was concluded in 1886, and it covered copyrights. Under the convention the International Bureau of Berne Union was established to administer this convention. India is one of a party to the Berne Convention that protects copyrights in various works across many countries that are its member signatories. This convention provides for the minimum standards of protection which relates to the works and rights to be protected and the duration of the protection.6 2. Universal Copyright Convention 1952 This Convention, was concluded on 6 September 1952, and is administered by the United Nations Educational, Scientific and Cultural Organization (UNESCO). Main objective was maintenance of specific minimum legal standards by all contracting states for the effective protection of the copyright of the author or other proprietors. Both published and unpublished work is protected under this convention.7 3. Rome Convention 1961 Like Berne convention, Rome Convention also talks about national treatment to be given to performance made in any of the convention country. National treatment, is a concept under which a member of the convention protects the rights of the authors, performers etc. belonging to other member nations in the same way as it protects the work or performances of its own nationals.8 4. The World Intellectual Property Organization (WIPO), 1967 It was signed at Stockholm on 14 July 1967 and came into force on 1970. The headquarters of the WIPO are at Geneva, and is one of the specialized bodies of the United Nations. The main objectives of the WIPO are: a) The promotion and protection of intellectual property rights throughout the world through the cooperation among the member states. b) to make international laws regarding IPRs. c) To bring national laws in tune with the international laws relaing to

6

Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 407. Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 409. 8 Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 411. 7

IPRS. d) Providing cooperation to countries. e) Disseminating information and maintaining services for protection of IPRs.9

5. Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement, 1995 It came into force on 1, January 1995. It deals with copyright and related rights. WTO initiatives led to creation of the TRIPS Agreement , another instrument that has made several strides in protection of copyrights apart from other forms of intellectual property rights . India is a signatory of the TRIPS Agreement.10

3. Indian Law Relating to Copyright In India, first legislation of its kind, the Indian Copyright Act was passed in 1914 which was mainly based on UK Copyright Act, 1911. However, this Copyright Act of 1914 did not suit the changed constitutional status of India and it became necessary to enact an independent self contained law on Copyright in the light of growing public consciousness of the rights and obligations of the author in the light of experience gained in the working of existing law during the past 40 years. Further, new and advanced means of communications like broadcasting, lithophotography etc. also necessitated certain amendments in existing law. Therefore, the Copyright Act was passed in 1957.11 The modern Copyright Act not only recognises the creative, literary or musical works for the individual authors, but also provides an effective legal framework for protecting the rights of the owners of Computer software. Section 2 (o) of the Copyright Act states that literary work includes “computer programmes, tables and compilations including computer databases”. Computer programme has been defined under Section 2 (ffc) of the Copyright Act, 1957 as “a set of instructions expressed in words, codes, schemes or in any form, including a machine

9

Ibid Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 412. 11 Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 412430. 10

readable medium, capable of causing a computer to perform a particular task or achieve a particular result.”12 Term of Copyright In India, the copyright for software lasts for the life of the author, plus sixty years, after the expiry of such period the work comes into public domain. In case of pseudonymous or anonymous work and work by public undertakings, the copyright lasts for sixty years from the date of publication.13 Any “work” including “literary work” must be presented in some tangible form, either in print or writing. Ideas which cannot be presented in some tangible medium cannot be protected under the Copyright Act. Computer software may be reproduced or presented in programme manuals, punched cards, magnetic tapes, discs, papers, etc and thus provides an effective tangible medium to get copyright protection. But the moment copies of the software are made and marketed, it becomes goods, which are susceptible to sales tax. Further, both the source code and the object code of computer software can be copyrighted.14 The general rules of copyright states that ideas cannot have copyright protection, but what is protected is the expression of the idea. However, the expression of the idea, which is nothing but a literal imitation of a prior work with minor changes here and there, will constitute violation of copyright law. Copyright law protects not only literal copying of the source code but copying the non-literal elements in a software like the “structure, sequence and organisation”.15 Copyright Infringement and remedies Copyright infringement of computer programmes, popularly known as software piracy is highly prevalent in India If any person without the permission of the copyright owner or exceeding the terms of the license granted publish, sell, distribute a software, the owner can file 12

Ibid Retrieved from < http://www.legalera.in/interviews/item/11856-jurisdictional-issues-in-cyber-space-violation-of-copyright.html> visited on April 14, 2017 at 1.30 pm. 14 Ibid 15 Ibid 13

for suit for infringement. Both civil and criminal remedies are available under the Copyright Act.16 Where copyright is infringed, owner of copyright is entitled to sue for remedies including injunction, damages, profit of accounts and delivery up of infringing goods. Section 51 states copyright in a work is considered infringed when a person without a license from owner or registrar of copyrights or contravening conditions of a license does anything the exclusive right to do which is the right of the owner as per the Act or permits for profit a place to be used for communication of work to public where such communication constitutes infringement of copyright in the work unless he was not aware and had no reasonable ground to believe such communication will be infringement of copyright.17 It also amounts to an infringement where a person makes for sale or hire or displays or offers for sale , or distributes for trade or to prejudicially affect the owner of copyright or by way of trade exhibit in public or import into India infringing copies of work( excluding one copy for personal use of importer).18 As registration is not compulsory , suits for infringement can be filed evenm if plaintiff has secured no registration of the work.. Civil remedies available to owner of copyright are also available to exclusive licensee. Electronic contracts are considered legally valid in most jurisdictions such as India and electronic licensing or assignment is also legally valid.19 Fair dealing as a defense Section 52(a) provides for exceptions to infringement termed as “Fair dealing”. Fair dealing with literary, dramatic, musicals or artistic work ( not being a computer program) for purpose of private use, including research , criticism, review, and as per Section 52 (b) for purpose of reporting current events in a newspaper, magazine, or similar periodical, or by broadcasting or cinematographic film or by means of photographs. As per Section 62 of 16

Retrieved from visited on April 14, 2017 at 1.40 pm. 17 Ibid 18 Ibid 19 ibid

Copyright Act, a suit or civil proceeding will be filed for infringement of copyright in district court having jurisdiction to hear the case. The jurisdiction under CPC will include place of residence where plaintiff resides or carries on business or personally works for gain. Section 63 of the Copyright Act provides the punishment for offence of copyright infringement. Any person who knowingly infringes or abets the infringement of the copyright in a work or any other right conferred by the Act is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and fine which shall not be less than Rs. 50,000 but may extend to 2 lacs. On second and subsequent conviction imprisonment is for a term not less than one year but which may extend to three years and fine which will not be less than one lac but may extend to 2 lacs. Punishment may be reduced if infringements are not made for commercial gain. As per Section 63 B, knowing use of infringing copy of a computer programme is punishable with imprisonment for term not less than 7 days but may extend to three years and fine not less than Rs.50,000 but which may extend to Rs.2lacs. Punishment may be reduced if infringements are not made for profit or gain. Section 69 provides that if an offence is committed by a company then every person who at the time offence was committed was in charge of and responsible for conduct of business of company shall be deemed guilty of such offence and liable for punishment unless if he proves offence was committed without his knowledge or that he exercised due diligence to prevent commission of such offence.20 After 2012 amendment Section 52 of the Indian Copyright Act as amended by the Copyright Amendment Act 2012 provides the position of law in India as regards fair dealing as a defence and explains circumstances where reverse engineering could be classified as fair use. A fair dealing with any work , not being a computer programme for purposes of private or personal use, including research, criticism or review whether of that work or any other work , reporting of current events and current affairs , including reporting of a lecture delivered in public is not an infringement of the work. Explanation to Section 52 (a) provides that storing of any work in electronic medium for purposes mentioned in the said clause including incidental storage which is not itself

20

Retrieved from visited on April 15, 2017 at 1.00 pm.

an infringing copy will not constitute infringement. This justifies as to why cache would be put under fair use.21 Section 52 (aa) provides making of copies or adaptation of computer programme by lawful possessor of copy to use computer programme for purpose it was supplied or for maintaining back up. Section 52(ab) allows doing of acts necessary for achieving interoperability with other programmes if such information is not readily available. Section 52 (ac) states it is fair dealing to test functioning of a computer programme to determine principles that underlie elements of the programme while performing such acts necessary for which role programme was supplied , As per Section 52 (ad) making of copies or adaptation of computer programme from a legal copy for non-commercial personal use is also fair use.22 An important insertion that protects internet service providers under fair dealing exceptions is explained in Section 52(1)(b),that is , the transient or incidental storage of a work or performance purely in technical process of electronic transmission or communication to the public. It is pertinent to note that Section 52(1) (c) provides transient or incidental storage of a work or performance for purpose of providing electronic link , access or integration where such links, access or integration is not been expressly prohibited by the right holder , is also fair use unless the person was aware or had reasonable ground to believe such storage is of an infringing copy . The Section has a proviso whereby when a person storing copy receives a complaint from copyright owner complaining such incidental or transient storage is an infringement, such person ought to deactivate access for a period of 21 days or till such time as competent court order.23 Further,in order to protect technological measures employed by authors to protect their rights, Section 65A has been introduced by copyright Amendment Act 2012 which provides that if any person circumvents such technological method with intention to infringing rights , he shall be punished with imprisonment which may extend to two years and shall also be liable to fine. There are certain exclusions in this Section such as conducting lawful investigation,

21

Ibid Ibid 23 Retrieved from < http://www.legalera.in/interviews/item/11856-jurisdictional-issues-in-cyber-space-violation-of-copyright.html> visited on April 15, 2017 at 1.30 pm 22

security check with authorization from owner, operator, for encryption research using lawful copy, for identification or surveillance of a user, and for acts done to protect national security. Section 65B introduced by Copyright amendment Act 2012 further provides that any person who knowingly removes or alters any rights management information without authority or distributes , imports for distribution , broadcasts or communicates to public without authority copies of any work or performance knowing that electronic rights management information has been removed or altered without authority shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. Civil remedies are also available incase rights management information has been tampered with. These provisions are of immense value to electronic publishing industry, gaming industry where authors are using DRMs to protect reverse engineering or circumvention of technological measures they opt to protect their copyrights from infringement. Some known techniques in use are namely, encryption, electronic signature, or digital watermarking or pay per view system, electronic software distribution.24

4. The Information Technology Act, 2000 The Information Technology Act, 2000 defines “Data” under Section 2(o) as a representation of information, knowledge, facts, concepts or instructions, which are being prepared or have been prepared in a formalized manner and is intended to be processed, is being processed or has been processed in a computer, computer system or computer net-work and may be in any form (including) computer print outs, magnetic or optical storage media, punched cards. The term computer Data Base has been defined under the Indian Legal System for the first time in the information technology Act, 2000 under Section 43 explanation (ii) as a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video data being prepared or have been prepared in formalized manner or have been produced by the computer, computer system or computer net-work are intended for use in computer, computer system or computer network.25 Section 43 of Information Technology Act, 2000 provides for compensation to the aggrieved party up to One Crore of Rupees from a person, who without the permission of the owner or the 24

Ibid Retrieved from visited on April 15, 2017 at 2.30 pm 25

person who is in charge of computer, computer system or computer net-work secures, access to the system or down-loads data or down-loads, copies or extracts any data or data base or information from the said computer, computer system or computer network or secures access to the system or down-loads data or down loads, copies or extracts any data or data base or information from the said computer, computer system or computer network which includes the data hold or stored in any removable storage media. Section 43 of the Act is very wide and cover instances of cracking the computer codes, computer trespass, digital copying, violation of privacy, data theft etc. Section 66 of the Act provides for penal liabilities to the person, who with the intent to cause or knowingly that he is likely to cause wrongful or loss or damage to the public or any person, alters or destroys any information residing in the computer resource or diminishes its value or utility or affects it injuriously by any means, the term commonly used for such crimes is ‘hacking’.26 The Copyright Act, 1957 does not deal with the liability of ISPs at all. However, the liability of ISPs finds mention in Section 79 of the Information Technology Act, 2000 as follows: ‘Network service providers not to be liable in certain casesFor the removal of doubts, it is hereby declared that no person providing any service as network service provider shall be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. Explanation-For the purposes of this Section, (a) ‘network service provider’ means an intermediary; (b) ‘third party information’ means any information dealt with by a network service provider in his capacity as an intermediary.’ Section 79 of the IT Act exempts ISPs from liability for third party information or data made available by him if the ISP had no knowledge of the offence committed or if 26

Ibid

the ISP had exercised ‘all due diligence’ to prevent any infringements.27

5. Copyright Infringement in digital medium The issues covered under copyright in digital medium are: i.

Copyright work in digital medium and its infringement IT has played very important role in our lives. It has brought tremendous change in our

lives. It can be seen in various aspects of life such as E- commerce, E- contract, Egovernance and so on. However, IT has a seamy side also. One of the major disadvantages is that various activities like caching, copying, mirroring, downloading, uploading, scanning. Let’s briefly understand these internet activities.28 Caching: Catching is well known concept in computer science. It means copying of a webpage/site and storing the copying for the purpose of speeding up subsequent accesses. When programs continuously success the same set of instructions, a massive performance benefit can be realized by storing those instructions in RAM. Mirroring: It is the automated process of writing data on two drivers simultaneously. It improves service for the users by replicating a web site across various servers all over the world and make available the critical information to all the users at all time. Browsing: It is a software driven process for searching the World Wide Web using a browser. Therefore, browser is the professional name for several methods of searching the web. Downloading: it means to receive data to a local system or computer from a remote system, or to initiate such a data transfer. Examples of a remote system from which a download might be performed include a web-server, FTP server, E-mail server, or other similar systems. Uploading: It refers to the sending of a data from a local system (computer) to a remote system (computer) such a server or another client with the intent that the remote system should store a copy of the data being transferred, or the initiation of such a process. 27

Ibid Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 432.

28

File swapping: It is “peer to peer” transmission of digital files from one computer to another via the internet. Scanning: When we scan an image, we reproduce it in an electronic digital form. With the digital version, we can then do many things, including store and retrieve the image to and from a storage digital disk and edit it in software programs like Photoshop and etc. It is important to note that these activities may result in infringement of the exclusive statutory rights of a copyright owner. a. Right to reproduce the copyrighted work. b. Right to store the information in a tangible form. c. Right to sell, rent, or otherwise distribute copies of the copyright work to the public. d. Right to perform and display publicly the copyright work. e. Right to prepare derivative works based on the copyright work.29 ii.

Copyright and Digital Music

The rapid increase of the internet has made it possible to transfer huge data of all types over the internet in a simple and cost effective way. Further compression technology has also played very important role in transferring data at fast speed and in less time.30 For this conversion, the compression technologies such as MPEG-2 for video and MP3 for music are worth appreciating. The distribution of digital music over internet can be dne in following two ways31 a. By transmission that are similar to radio broadcast over the internet. whether to the public at large or directly to individuals upon request and is called web casting. Web casting generally refers to the streaming of audio on the internet. b. By the delivery of computer files, much like word processing data or spreadsheet files, that contain sound recording s which can be played on personal computers and other devices equipped with the necessary decoding and audio software and

29

Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 434. Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 439. 31 Ibid 30

hardware. These are referred to as downloading music files or by the name of the file format, which made them popular, as MP3.32 It is important to note that MP3 technology has brought a revolutionary change in sharing of digital files over the internet. An MP3, also known as a MPEG-1 Audio Layer 3, is a lossy data compression format that is used for audio. A lossy compression means that when the information is compressed, some data is lost. Thus, when something is encoded into a MP3, some information is lost. Digital MP3 files are created through a process commonly known as “ripping”. Ripping software allow a computer user to copy an audio compact disc ( audio CD) directly on to a computer’s hard drive by comprising the audio information on the CD directly into MP3 format i.e. a user’s can copy a CD that contains audio information in some other format, into files on the hard drive that are in MP3 format. However, when this technology is applied, for free transmission of copyrighted songs over the internet it may result into copyright infringement.33 Copyright and Digital Music: Indian Perspective: In India, such cases could be handled under Section 51 of Indian Copyright Act, 1957 which provides if any person does anything without the permission of copyright holder, it amounts to infringement. Section 63 of the act made liable software developer for abetting the infringement of copyright shall be punished. Further Section 51 (a) (ii) could also be applied in same situations which disallows for profit the use of any place for communication of work to publicwhere such communication amounts to infringement.34 iii.

Computer Software and Internet Piracy

Software is defined as a set of instructions which when incorporated in a machine-readable form or in capable of causing a computer to perform a particular task. To put it simply, it is a series of commands which can be understood by the machine.35 There are three essential types of software which help to function the computer, micro code it is 32

Ibid Ibid 34 Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.) p. 409. 35 Ibid 33

a programme which controls the details of execution, the operating system software which control the sources of a computer and manages routine tasks and is a necessary requirement for a computer to function and the third is a application software which is designed to perform a particular task. 36 Piracy occurs when copyrighted software is made available to users to download without the express permission of the copyright owner. Such illegal software is offered over online sources such as online advertisements newsgroups bulletin board service and auction sites. Piracy hampers creativity, hinders the development of new software and local software industry and ultimately effects e-commerce. A piracy harms consumers and has negative impact on local and national economy. Consumers run the risk of viruses and having corrupted and defective programs.37 iv.

Unauthorized Modification of Data and Computer Virus

Perhaps the most notorious form of conduct in the computer field consists of dissemination of computer viruses. In many instances, the effect of a virus will be distinguishable from that of a logic bomb. The difference between the two concepts is that whilst a logic bomb is normally created is applied to a particular computer system, a virus will typically transferred from one system to another. This may occur through the transfer of disks of other storage devices. 38 Computer viruses can take a wide variety of forms. One of the less harmful examples of the species is the ‘Cookie Monster’. Inspired by an American television character, this causes message ‘I want a cookie’ to appear on the computer screen. If the user types the word ‘cookie’, the message disappears, otherwise it returns with increasing frequency. In similar vein, the ping pong’ virus causes the image of bouncing ball to cross and record the screen. In neither instance are any data or programs affected.39 Other viruses are considerably more malign. One which is reported to have infected computers in a Maltese Bank had the effect of corrupting data. Evidencing a somewhat sense of 36

Retrieved from visited on April 16, 2017 at 1.30 pm. 37 Ibid 38 Retrieved from visited on April 16, 2017 at 2.30 39 Ibid

humour or the part of its creator, the virus gave the user the opportunity to play what was effectively a game of chance. If the user won, the data would be restored otherwise it would be permanently erased.In other cases, not even this degree of opportunity is given to the user to avoid permanent loss of his data. One of the most notorious examples of a computer virus was the so called ‘AIDS’ virus. This was contained on a disk, which was mailed to subscribers of a popular computing magazine. Purporting to be an information program on the AIDS virus, the programme would corrupt and render useless the data on any computer on which it was loaded.40 i.

Trojan Horse: A deceptive program that steals passwords.

ii.

Trapdoors: Gains entry through access points for system maintenance.

iii.

Spoofing:

Tie up network computers by sending them tons of bogus enquiries. iv.

Data Didding:

A fraud that input involves input manipulation. v.

Salami TechniqueThin slices of information are removed and send to other accounts.

v.

Data Protection and Privacy

Internet technology facilitates the gathering of personal data. But this also brings a possibility of a threat to the privacy of a cyber consumer or netizens. With the boom in online service provider companies in India, misusing of the personal data of a cyber consumer has become a major menace.41 However, there is no specific legislation to protect the personal data of a person though to a little extent

protection

may

be

given

under

the

Copyright

Act,

1957.

With US and EU having strict policies relating to privacy and protection of personal data, it 40

Retrieved from visited on April 16, 2017 at 2.00 pm. 41 Retrieved from visited on April 16, 2017 at 2.30 pm.

becomes very important for India, considering the inflow of foreign investments and other business opportunities, to have specific data protection and privacy laws. The Information Technology Act protects privacy rights only from government action and it’s unclear if such protection can be extended to private actions as well.42 The absence of data protection and privacy law has also been creating obstacles for Indian companies while dealing with the EU as the data protection directives require a very high level of protection. India needs to adapt to the changing needs of the time and provide for a comprehensive data protection regime which will not only help in gaining consumer confidence but also increase the amount of business that Indian BPO service providers receive from the EU.43 vi.

Copyright in computer database

Databases in an elementary sense are nothing but an arrangement of arrays of information in a tabular manner. A computer database can be of two types – containing only raw data and a database which is a complex software which stores raw data, process the data and disseminate the information in a desirable format. Databases are generally protected as literary work, and Indian copyright law specifically recognises computer databases. Database includes mailing lists, telephone directories, etc in which can be produced in either electronic or in traditional paper format. Database protections are generally granted not because they are creative or innovative, but to recognise the labour invested in creation of the database. Creation and development of a successful commercial database involves investment of huge sum of money and time.44 However, not all databases are protected under the law, only those databases which feature some degree of originality in compilation of the facts are protected. The data which is stored inside the database, may or may not have separate copyright protection. Moreover, copyright protection granted to a database, does not automatically grants copyright to the data inside it. For example, an array of phone numbers may not have copyright protection, however a compilation 42

Ibid Ibid 44 Retrieved from < http://www.legalera.in/interviews/item/11856-jurisdictional-issues-in-cyber-space-violation-of-copyright.html> visited on April 16, 2017 at 3.30 pm. 43

of skilfully arranged number may be copyright protected, but not the numbers itself. The US Supreme Court, in Rural Telephone v Feist laid down a three prong test to decide whether the compilation is original or not, firstly, there must be a collection of “pre-existing materials or data”, secondly the sdata must be “selected, coordinated, or arranged” in a particular way and thirdly the resultant work as a whole “constitutes an original work of authorship”.45 In India, most of the Courts have trended to follow the principle of “sweat of the brow”. In Burlington Home Shopping Pvt Ltd v Rajnish Chibber, Delhi High Courtheld that as the compilation of mailing addresses of customer requires lot of money, time, labour and skills, and even though such information is available in the public domain and no uniqueness in arrangement of the data, such compilation would meet the requirement of “literary work” under Copyright Act. However, in another case Eastern Book Company v Desai, the Delhi High Court have stated, referring to the Feist case, that there must some “modicum of creativity” in arrangement and compilation of the information to meet the criteria of originality and to avail copyright protection. In this case, the Court held that mere correction of typographical errors, addition of quotations does not meet the threshold of originality to be protected under laws of copyright. InHimalaya Drug Company v. Sumit, the Delhi High Court, granted permanent injunction and punitive damages against the respondent who copied an online database of the plaintiff consisting of information on herbs and its cure.46 vii.

Copyright in Thumbnails

Though using thumbnails of images owned by other may constitute violation of copyright, except in case the image has been used under fair-use criteria, ie, for news, research, criticism or review of the work., etc. The Courts in US (Perfect10 v Amazon, Kelly v Arriba Soft Corp) have held that automatic indexing of the webpages containing the images by a search engine and provide thumbnail versions of images in response to user inquiries is fair use.47

45

Ibid Ibid 47 Retrieved from < http://www.legalera.in/interviews/item/11856-jurisdictional-issues-in-cyber-space-violation-of-copyright.html> visited on April 16, 2017 at 4.30 pm. 46

Landmark cases One of the most cited lawsuits worldwide for digital copyright infringements is of the Napster Case, whereby the plaintiff was sued by the defendants, for P2P file sharing. In this case, Napster provided software, whereby the user can share media files (MP3 Files) stored in his computer to other user of Napster. Since the filing of the Napster Inc case, the music companies have been seeking USD 1, 00,000 for each copyright-protected song downloaded using Napster.There was a settlement between the parties, whereby Napster had to give a third of all future profits to the settling parties, and Napster Inc. was shut down in 2000. In Sega Enterprises v Maphia , the plaintiff manufactured video games which could only be played on game consoles manufactured by plaintiff. The defendant managed a BBS that enabled users to upload Sega games to his BBS which others could then download. The court took the view that defendant infringed plaintiff’s copyright as it caused or materially contributed to the infringement. In Kelly v Arriba SoftCorp Leslie Kelly’s copyrighted pictures were displayed by a search engine that not only produced thumbnails but also large size pictures in its search results. This was held by the court to be an unauthorized reproduction of plaintiff’s pictures that directly infringed copyright of the plaintiff. While creating only thumbnails could be justified as fairuse , but downloading from search engine result full size image amounted to an infringement. Recent example of infringement in electronic publishing industry is that of the class action lawsuit against Google and its online library feature, wherein Google settled royalty dispute with authors and publishers of books available in its online library for free access which allowed free downloading which directly infringed their copyrights. In a recent Indian case, Gramaphone company of India vs Super cassette Industries ltd, the court took the view that plaintiff had infringed the copyright of plaintiff in sound recordings , wherein a remix version of a song was being sold by defendant on the internet or as mobile tune .The court observed that right of a copyright holder in a recording version to sell , give on

hire or offer for sale or hire to public or distribute is not curtailed by the format in which it may be sold online. In Eastern Book Company Limited v D. B Moda, the appellants were engaged in business of printing judgements of the Supreme Court of India through its publication ‘Supreme Court Cases’. These judgements would be copyedited by them to make these more user friendly by putting cross references, inputs, paragraph numbers, formatting and headnotes. Appellants contended that since creation of headnotes required considerable skill, labour and time and expense, the work is an original literary work and the appellants alone had exclusive rights to make hard copies or electronic copies of the publications under Section 14 of the Copyright Act, 1957.It was alleged by the appellant that the respondent had produced a software called Grand Jurix by scanning, copying and reproducing portions of the publication of the Appellant which constituted infringement of copyright as per Section 51 of the Copyright Act.When appellants prayer for interim injunction was rejected by the high court, the matter was appealed to division bench that directed the respondents to sell their software without the headnotes or text of appellants. In contempt petitions filed against respondent for noncompliance of this order , the Division bench held that so far the footnotes and headnotes are concerned these are protected by copyright but it did not grant injunction against sale of the copyedited judgements as a whole. Before the Supreme Court, the issues that were considered were what is the standard of originality in the copyedited judgments and what will give such derivative work protection of copyright? Another issue was whether the whole of copyedited judgement deserves protection of copyright or any part thereof such as headnotes? The Supreme court relied on the

CCH Canadian ltd vs Law Society of

Upper Canada (2004) 1 SCR 339 (Canada) and observed that derivative work must have some sufficient distinguishable quality or features which the original work does not possess. Only trivial inputs will not satisfy the test of copyright of an author.Novelty or innovation is not the requirement of copyright but it does require minimum degree of creativity. The Court observed that copyedited texts of judgements of appellant deserved protection of copyright and partly allowed the appeals directing that though respondents may sell their CDs with their own editorial

content and headnotes during pending of the matter in high court but it can do so without using the footnotes, headnotes, editorial comments and inputs of the appellants . In Microsoft corporation v Yogesh popat[, the Delhi High Court dealt with a copyright infringement case and awarded compensation of Rs 23.62 lacs to Microsoft Corporation against M/s Compton Computers Private ltd and its directors for uploading pirated software of Microsoft in computers the company sold after assembling parts .

6. Conclusion With the passage of the Copyright Amendment Act, 2012 the copyright regime in India strengthens statutory protection available to authors to safeguard their rights both in offline and online world. At the sametime it explains the fair dealing exceptions to copyright with much lucidity. New hybrid digital works such as multimedia will bring forth newer issues as technology develops and new laws or clarification of existing laws will be required to address new issues in protection of copyrights in the dynamic digital world. From the analysis of the above provisions of the IT Act, it can be said that the Act at best seeks to protect software piracy and other cybercrimes but does not specifically deal with IPR issues.

7. BIBLOGRAPHY 

http://www.hg.org/article.asp?id=5260

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http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html

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http://www.legalserviceindia.com/article/l462-Copyright-Infringement-in-Cyberspace-&Network-Security.html

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http://www.legalera.in/interviews/item/11856-jurisdictional-issues-in-cyber-spaceviolation-of-com

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http://www.hg.org/article.asp?id=5260

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http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1438&context=ilj



Jyoti Rattan.(3rd ed), Cyber Laws and Information Technology (New Delhi: Bharat Law House Pvt. Ltd.)