All the forms of original expression fixed in tangible medium are subject to copyright protection. With the rapid change and advancement of technologies, protection of copyright work has emerged to be a major challenge. The issue associated with the digital domain is the diffusion of information via internet. Piracy refers to the unauthorized duplication, use or distribution of someone else's copyrighted material without their permission. Such action leads to copyright infringement and may attract civil as well as criminal charges. Easy access to internet, ubiquitous nature of digital media and exponential number of pirates has made identification of infringer and curbing of the said issue a tedious task.
Challenges in deciding the jurisdiction
The intangible nature of internet makes the determination of jurisdiction a major problem. Rapid change in technology and complexity of cybercrime cases are proportionate to each other, which makes it difficult to determine the engagement of an individual in copyright infringement cases. Once the infringement is established in some other country, it becomes all more difficult to determine the law that needs to be applied in order to punish the infringer.
Right of Reproduction and its challenges
Change in technology will always result in change in society because of its dynamic nature, which will lead the internet technology to grow at a faster pace. Simultaneously, the said technology may be used for the exploitation in the form of infringement of copyright when there are no proper checks and balances. In order to distribute or sale any material on the internet, the infringer is required to reproduce the material. Any work that is copyrighted may be circulated by using some basic tools of technology on cyber space to disseminate or store or use a copyrighted work. Data through the assistance of internet is transferred using a technique which breaks down the data into small packets and further reconstitute them into small packets. These small packets are further reconstituted to form an entire matter. This technique and several other techniques like this are classified as 'Packet Switching', 'Caching', Framing Technology, Linking and Email which is nothing but a severe violation of copyrights.[1]
Challenges in enforcing liability
In order to make an infringer liable, it is imperative to determine where exactly the liability lies. In an issue related to copyright infringement several people can be involved. Before reaching the final destination i.e., public domain an information can go through various layers and devices. While determining about the liability, role of an intermediary shall also be taken into consideration. As per the amendment which was made in 2012 to the Copyright Act of 1957, an intermediary can not be held liable for the infringement of copyright act if it did not have knowledge about it. Section 52 (1)(c) specifies that "intermediaries are not responsible unless they are aware or have reasonable grounds for believing that such storage is of an infringing copy:" Similar view was held by court in Super Cassettes Industries Ltd. V. Myspace Inc. & Anr.[2] In which the division bench of Delhi High Court held and specified the grounds that are necessary to hold an intermediary liable for copyright infringement. An intermediary can only be held liable, if they had actual or specific knowledge about the existence of infringing content on their website and if they had not taken any steps to remove that content from their website. Therefore, though the section may protect the innocent intermediaries from the blanket of false accusations, it is often misused by the infringers.
What does law of the land states?
Law of the land and the amendments made to it from time to time plays an important role in curbing the issues of infringement. The Copyright Act of 1957 along with the Information Act of 2000 deals with several facets of piracy. The amendment to the Copyright Act which was made in 2012 has expanded its horizons and has bought under its umbrella various forms of online piracy. The amendment not only protects the innocent intermediaries but also protects the rights of the owners of copyrighted material. Section 65 A of the new amended act protects the rights of the owners of the copyright material by imprisoning the infringer for the period of imprisonment which may extend to two years and shall also be liable to fine[3]. Section 65 B provides for the protection of management information[4]. Whereas, Section 66 of the IT Act, 2000 provides for punishment up to 3 years and a fine of up to Rs. 2 lakhs for illegal distribution of copyrighted content.
Conclusion
The infringement of copyrighted work has impacted the lives of people considerably. Though various legal and technological measures have been taken in order to control the infringement, many more steps are necessary to achieve the desired goal of protecting copyright laws getting infringed. Economic development of a country and infringement of copyrighted work are corelated to each other. Digital piracy not only impacts the MSME Businesses but also the large-scale business organizations. It is high time now to find an effective solution to the ongoing issue of piracy and help protect the hard work of artists and producers.
Author: Abhishek Mishra - a student of University of Mumbai Law Academy, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
References:
[1] Dr. G. Mallikarjun International Journal of Engineering Technology Science and Research ISSN 2394–3386 Volume5, Issue1
[2] 2011 (48) PTC 49 (Del).
[3] Section 65 A states that "any person who circumvents an effective technological measure applied to protect any of the rights conferred by this Act, to infringe such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
[4] Section 65 B states that "any person, who knowingly- (1) removes or alters any rights management information without authority, or (2) 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."
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