The Copyright (Amendment) Act, 2012: (Part-II)
A Landmark in Indian Copyright Legislation
Provisions for Persons with Disabilities
The
amended section 52(1)(zb) allows any person to facilitate access by persons
with disabilities to copyrighted works without any payment of compensation to
the copyright holder, and any organization working the benefit of persons with
disabilities to do so as long as it is done on a non-profit basis and with
reasonable steps being taken to prevent entry of reproductions of the
copyrighted work into the mainstream. Earlier s.52(1)(zb) dealt only with
formats that were “special designed only for the use of persons suffering from
visual, aural, or other disabilities”. Due to the amendment it now covers “any
accessible format”. Even for-profit businesses are allowed to do so if they
obtain a compulsory licence on a work-by-work basis, and pay the royalties
fixed by the Copyright Board.
This
exception is a progressive one which very few countries have till date adopted
and the Indian legislatures must be commended for incorporating the same.
Digital Rights Management (DRM)
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| Google Images |
Prior to the amendment the United States
had shown its eagerness for a change in India’s copyright laws in order to
match the U.S. copyright laws. This is evident from the Special 301 report of
U.S. in the year 2009 wherein it stated; “The
United States encourages India to enact legislation in the near term to
strengthen its copyright laws and implement the provisions of the WIPO Internet
Treaties.”[1]
It is probably for this reason that India, though it is not a member of
WIPO, has added a provision for anti-circumvention in the Amendment Act.
DRM
includes measures that amount to a 'digital lockup' of content and networks by
right-holders/service providers. The most commonly deployed measures include
encryption, metadata, watermarking or fingerprinting.[2]
They can be used to simply restrict access or even to protect copyrighted
material.
The
reason for implementation of anti-circumvention laws may not only be because of
pressure from other countries. According to a BSA-IDC
Global Software Piracy Study, in 2008 global
software manufacturers lost an estimated $2.76 billion to software piracy in
India[3].
In 2009 the Indian government suffered revenue losses of $866 million in 2009
due to the high rate of illegal software trade in the country[4].
The Indian film, entertainment and media industry has also been hit heavily due
the increasing rate of piracy.
Section
65A(1)[5]
seeks to make circumvention of “effective
technological measure” on copyrighted material a criminal offence, with
imprisonment for a maximum period of two years. The word “effective” is rather
vague and can also be interpreted to mean that circumvention of technological
measures which are easy to circumvent. Based on the usual doctrines applied in
intellectual property laws, the courts may adopt an interpretation along the
lines of; if a common man who has no special skills which enable her/him to
circumvent such technological measures, manages to do so, then such technological
protection measures cannot be said to fall within the purview of “effective
technological measures”. In modern times, professional hackers and crackers are
generally youngsters with no special training, so determining whether a person
has ‘special skills’ or not may sometimes become difficult to prove.
Section
65A (2), however, provides various exceptions, enumerating permissible acts of
circumvention. These exceptions include:-
·
doing anything
necessary to conduct encryption research using a lawfully obtained encrypted
copy; or
·
conducting any lawful
investigation; or
·
doing anything
necessary for the purpose of testing the security of a computer system or a
computer network with the authorization of its owner or operator; or
·
doing anything necessary
to circumvent technological measures intended for identification or
surveillance of a user; or
·
taking measures
necessary in the interest of national security[6].
When
compared to the anti-circumvention provision in the U.S. Digital Millennium
Copyright Act (DMCA), section 65 (A) seems to be more consumer friendly and far
more balanced. However, this provision does not disallow certain DRM systems
which prohibit the common man from exercising any of the fair use exceptions.
It only gives the common man the legal right to circumvent in case of such
exceptions. Therefore, the dilemma of the legality of DRM systems restricting
fair use still remains. It was for this reason that Yahoo India had suggested
deletion of Section 65A.[7]
The Indian Broadcasting Federation (IBF) had recommended an increase in the
imprisonment term from 2 years to 3 years for first offence, 5 years for second
offence and all offences to be treated as cognizable and non-bailable was the
first suggestion made[8].
It was also recommended by IBF that any person found circumventing the
technology should be deemed to have circumvented it with the intention to
infringe copyright. This way the burden of proof would fall on the
circumventer. Also, copyright owner should be entitled to seek damages from the
offender. Google India suggested that illegal circumvention be only a civil
offence and not a criminal offence[9]. MediaNama also advocated deletion of
this section, as consumers buy the right to listen to music, this right cannot
be restricted to particular devices or a medium.
The
newly added section 65B provides for protection of Rights Management
Information (RMI)[10]. The purpose of section 65B is to
make the Indian copyright laws in compliance with the WIPO Copyright Treaty
(WCT), article 12 of the treaty in particular[11].
The Amendment Act even defines RMI at Section 2(xa).[12]
The
Standing Committee, after taking these suggestions under consideration
concluded that it would be better to give only limited legislative guidelines
for anti-circumvention and allow the judiciary to evolve the law based on
practical situations[13].
It
is also worth noting that the Amendment Act does not list the type or class of
goods or services for which circumvention applies. This may lead to an overlap
with the ‘right to information’ or ‘freedom of speech’ or other laws calling
for accountability.
Limited Protection to Some Internet Intermediaries
The
amendments to section 52, which provide some level of protection to 'transient
or incidental' storage of a work or performance either purely in the technical
process of electronic transmission or communication to the public, or for the
purpose of providing electronic links, where such link has not been expressly
prohibited by the right holder, unless the person responsible is aware or has
reasonable grounds for believing that such storage is of an infringing copy.
This provision would protect search engines which provide hyperlinks to other
websites.
Procedures Simplified
The
amendment to section 21 of the Copyright Act, which deals with the right of
authors to relinquish copyright, allows the author to relinquish the copyright
by a simple public notice. Earlier, the author relinquish parts of one’s
copyright by submitting a form to the Registrar of Copyrights Additionally,
s.30 of the Act, which required licences to be in writing and signed, now only
requires it to be in writing. This puts Creative Commons, the GNU Public
Licence, and other open licensing models, on a much surer footing in India.
The
newly added section 31D will also has also simplified the procedure for
obtaining statutory licenses for public broadcasting.
Protection of Moral Rights
The newly added section 38B safeguards
moral rights of the performer of a performance even after assignment. The
performer is entitled to claim identification as the performer of the
performance. The performer can also restrain
or claim damages in respect of any distortion, mutilation or other modification
of the performance that “would be prejudicial to his reputation”. To protect
‘fair use’, the explanation to the provision clarifies that mere removal of any
portion of a performance for the purpose of editing, or to fit the recording
within a limited duration, or any other modification required for purely technical
reasons shall not be deemed to be prejudicial to the performer’s reputation[14].
Conclusion
The
Copyright (Amendment) Act, 2012 has added some provisions to Indian Copyright
Law which have not yet been incorporated in several developed countries. It is
a boon to authors of copyrights as well as users of the copyright. The clarifications
on what amounts to infringement have relieved those, who have always advocated ‘fair
use’, but feared allegations of infringement.
However, the issue of ‘parallel imports’,
which is discussed in detail has not been addressed by the Amendment Act at
all. Provisions of parallel imports can be found in Section 107A (b)[15]
of the Indian Patent Act, 1970 and Section
30(3)[16]
of the Trademarks Act, 1999.
Also,
Other than the disability rights groups, which had campaigned very hard for the
amendment to section 52(1)(zb), the Parliamentary Standing Committee did not
invite any non-industrial groups for deposition before it. It is perhaps for
this reason that the amendments do not focus on rights of small-time lyricists,
writers or composers. The Standing Committee should have deposed persons from
all the relevant groups. Provisions affecting the rights of libraries were
passed without even calling a single person running a library or working in
one.
Section
65A relating to DRM should be amended so as to replace or delete or explain the
word “effective”. There is indeed a need for laws which restrict the adoption
and use of DRM systems on certain classes of copyrighted material. However, it
should also provide that it be compulsory for the manufacturers who are using
DRM to make freely available their contact information, in case any user wishes
to seek permission to break the DRM system for legal use.
How the authors, copyright society and,
ultimately, the Courts will compute ‘equal share of royalty from exploitation
of works’ for different types of works is yet to be seen. A large amount of
litigation may crop up on this issue itself.
-------------------------
[1] Office of the United
States Trade Representative 2009 Special 301 Report , April 30, 2009
[2]
Herman, B.D., 'Breaking and Entering My Own Computer: The Contest of Copyright
Metaphors', (2008) Communication Law and Policy 13(2) 231-274, p231
[3] The Economic Times, ‘Software piracy in India down by a notch; losses up at $2.7
bn’, New Delhi, May 12, 2009
[4] The Hindu, ‘Software piracy
caused $866-m tax loss in 2009: Study’ Pune, June 4, 2012
[5]Section
65A (1) “Any person who circumvents an effective technological measure applied
for the purpose of protecting any of the rights conferred by this Act, with the
intention of infringing such rights, shall be punishable with imprisonment
which may extend to two years and shall also be liable to fine.”
[6] Section 65A (2), the
Amendment Act
[7] Department-Related
Parliamentary Standing Committee On
Human Resource Development, Two Hundred
Twenty-Seventh Report On The Copyright (Amendment) Bill, 2010,
presented to the Rajya Sabha On 23rd November, 2010, laid On The
Table Of Lok Sabha On 23rd November, 2010, 20.4
[8] Ibid., 20.3
[9] Ibid.
[10]
Section 65B of the Amendment Act “Protection of Rights Management Information Any
person, who knowingly
(i)
removes or alters any rights management information without authority, or
(ii)
distributes, imports for distribution, broadcasts or communicates to the 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;…”
[11] Article 12
of WCT: Obligations concerning Rights
Management Information: (1)
Contracting Parties shall provide adequate and effective legal remedies against
any person knowingly performing any of the following acts knowing, or with
respect to civil remedies having reasonable grounds to know, that it will
induce, enable, facilitate or conceal an infringement of any right covered by
this Treaty or the Berne Convention:
(ii) to distribute, import for distribution, broadcast
or communicate to the public, without authority, works or copies of works
knowing that electronic rights management information has been removed or
altered without authority.
(2) As used in this Article, “rights management
information” means information which identifies the work, the author of the
work, the owner of any right in the work, or information about the terms and
conditions of use of the work, and any numbers or codes that represent such
information, when any of these items of information is attached to a copy of a
work or appears in connection with the communication of a work to the public.
[12] Sec
2 (xa) of the Copyright Amendment Act, 2012- “Rights
Management Information”, means‐ the title or other information
identifying the work or performance; (ii) the name of the author or performer;
(iii) the name and address of the owner of rights; (iv) terms and conditions
regarding the use of rights; and (v) any number or code that represents the
above information; but does not include any device or procedure intended to
identify the user.
[13] Ibid.
[15]
Section 107 A of the Indian Patent Act, 1970 – “Certain acts not to be considered as infringement
[Certain acts
not to be considered as infringement. For the purposes of this Act,—
(a) any art of
making, constructing, [using, selling or importing] a patented invention solely
for uses reasonably relating to the development and submission of information
required under any law for the time being in force, in India, or in a country
other than India, that regulates the manufacture, construction, [use, sale or
import] of any product;
(b) importation
of patented products by any person from a person [who is duly authorised under
the law to produce and sell or distribute the product], shall not be considered
as an infringement of patent rights.]”
[16] Section 30(3) of Trademarks
Act, 1999- “Where the goods bearing a
registered trade mark are lawfully acquired by a person, the sale of the goods
in the market or otherwise dealing in those goods by that person or by a person
claiming under or through him is not infringement of a trade by reason only of—
(a) the registered trade mark having been
assigned by the registered proprietor to some other person, after the
acquisition of those goods; or
(b) the goods having been put on the
market under the registered trade mark by the proprietor or with his consent.”
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