Challenges in the Enforcement of Protection of Copyrights Laws in the Digital Era
Technological development, which ushered in new modes of misuse of copyright works, brought in challenges to the copyright regime which had to be occasionally revised to ensure adequate return to the authors and access to the public of these works. Most significant of the challenges hitherto has been from digital technologies. Technological developments in its interaction with cultural products facilitated new forms of creative expressions. Whenever technology provided a new method of use of cultural goods in the society, copyright system brought in rules and regulations to enable its effective distribution in the market place and ensured adequate returns to the creator. Digital technologies facilitate conversion of any data or information into binary form, which could then be easily stored or replicated. Each digital copy came close to the original and each such copy could act as seeds for further copies.
With the advancement of the Internet, issues relating to intellectual property rights (IPR) protection are also likely to come to the fore. As of now, the country is caught up with infrastructural development for the spread of Internet so that the demand is met, and, within a few years, Internet will reach every nook and corner of the country. Development of high-speed national telecommunications backbone and provision of adequate telephone lines are priority issues. Nodes have been erected in over two dozen cities in different parts of the country to facilitate Internet services. With a view to enhancing access to this sophisticated and fast medium of communication network, the government has decided to permit private companies to provide Internet services. With the entry of private Internet service providers, very soon India should become a leading Internet user in the world, as it had happened in the case of cable television service. The increased use of Internet would mean a greater challenge to IPR protection than at present. While Internet is poised for a quantum leap in the country, it will be premature to suggest practical solutions to the intellectual property right problems of Internet, as experiential knowledge of such problems is very limited. Intellectual property rights issues are already there but they are more in the realm of theory than of praxis.
The copyright system, which traditionally dealt with tangible goods, had now to come to terms with ‘de-materialized’ works in digital form. Digitisation makes near perfect reproduction of works easy and affordable. Computers upon which digitisation thrived required by virtue of its architecture creation of temporary, transient or ephemeral copies in the process of communicating to the user. Once digitised and placed on a network like Internet the author loses control over the work. In the analogue era, distribution involved physical transfer of copies and ownership over them. Right of reproduction, the core copyright right remained under firm control of the author. In digital transmission distribution involved reproduction at many stages though transient or ephemeral at times, the author having no control over the issue of copies. The physical controls possible in the analogue era were no longer available in the digital era. Compressibility of digitised works made transmission of files containing huge data (like audio- visual works) easier and faster. This broke the isolation of the individual user from the rest of the world bringing in issues like definition of private use and the extent of it, thus blurring the public-private use dichotomy central to the ‘fair use’ doctrine in copyright law.
In internet transmission, the communication to public or public performance need not be simultaneous with the performance or the communication. Traditional copyright law arranged the rights granted to authors a set of independent rights separately exercisable, each on its own footing. Transmission of works over the internet resulted in merging of these rights. The digital technologies scrambled the beautifully arranged, dogmatically duly classified rights central to the approach hitherto followed by the copyright system.
Copyrights are the set of exclusive rights granted by law to the creators and the producers of the forms of creative expressions such as artistic, cinematography, musical and literary works. These rights bestow on the copyright owner the control over the use of its works like their reproduction and distribution for a limited duration.
The contour of the copyright law has been drawn by the development in technological world the emergence of digital technologies towards the concluding decades of the twentieth century as the defining paradigms of the new age communication raised a whole new set of challenges to copyright regimes. The traditional notion of the basic concept of copyright such as right of reproduction and distribution has been become inadequate and even irrelevant in the digital era. All works can now be digitalized whether they compromise text, images, diagrams and sounds and once digitalized all are equal and can be merged, manipulated, mixed and transformed to create an endless variety of new works. Earlier right of reproduction and distribution affected tangible physical copies only of the work. The new technologies brought in non – material production and distribution. Physical reproduction is replaced by digital reproduction.
While initially the intellectual property right community got bewildered at these developments, slowly the learned the tricks of the new game and find out the ways to regulate the rights in the new media. The concerted efforts of the international community to respond to the challenges of digital technology mostly took place under the aegis of World Intellectual Property Right Organisation (WIPO). This special agency of United Nations Organisation responsible for the promotion for the protection of intellectual rights throughout the world, began in 1989 to examine the revisions needed in the multilateral conventions specially the Berne convention for the protection of literary and artistic works in the light of new technologies and concluded two new treaties in the diplomatic conference in 1996 namely the WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty. These treaties are indented to address the issues of copyright protection on the internet, the worldwide communication system possible by advancement in digital technologies.
The prominent copyright issues in the digital era can be classified into three groups –
- Issues relating to the whole new set of work, namely computer programmes, database and multimedia works.
- Issues relating to the reproduction, distribution and communication to the public of the work through digital media.
- Issues relating to management and administration of copyright in the digital environment.
Technology had in the past given birth to new forms of creative expression in the creative ars which were subsequently brought in the preview of copyright protection.
Computer programmes –
Computer programmes are generally understood as a set of instructions capable of, when incorporated in the machine readable medium causing a machine having information processing capabilities to indicate, perform or achieve a particular function, task or result.
The issue of intellectual property right regime for protecting computer programmes had exercised the international community for quite long. Arguments are advanced in favour and against patent regime and copyright regime and even a sui generis system to protect computer software. This was subsequently reiterated in WCT when it stated that protection applies to computer programmes whatever may be the mode and form of expression.
Data – base –
Another group of works which were affected in the major way by the development of digital technologies is data – bases. Data base means a collection of independent works, data or other materials arranged in a systematic or methodical way and capable of being individually accessed by electronic or other means.
Manual collection and development of a database were very cumbersome and time-consuming processes. Digital technologies made development of databases much easier and user friendly than in the past. Traditionally databases were protected as compilations under literary works. In a computer database there are two structural parts: the program, which is used to control and manage the data and the data itself. The program, no doubt, gets protected as literary work. Doubts persisted among many about protection for the content part, despite the provisions on compilations in the Berne Convention.
Multi – media work –
Digital technologies have created works with much more versatility than in the past. A work may now consist of literary, artistic, musical and dramatic elements and may also include a phonogram and a cinematographic film. The user can ‘interact’ with the work in a way a past generation could not do. He can make changes and alterations and even create a new work out an existing one. Multimedia works by their basic premises are works combining different elements, such as text, sound, still visuals and moving images, of different classes of works the resultant work defines existing classification. If the rights for all classes of works were the same, then perhaps, this would not have been a major issue. But the law as it stands in India, distinguishes between different classes of works in the matter of rights. The authorship may raise another problem, as the criterion of authorship is different between literary, dramatic, musical and artistic works on the other hand. There is a view that multimedia works being a digital product be classified as computer programs. Since there are separate provisions for rights and authorship of a computer program as distinct from literary works in the Copyright Act, this could be a possible solution.
Right of Reproduction
Digital technologies have brought in a new form of transmission of copies of a work. Traditional transmission of a work was material copy based which could be on paper or tape as in the case of a book or a tape or film as in the case of a phonogram or a motion picture. This has not been replaced by material-less transmission, through computer bytes.
Right of reproduction is the most basic of the copyright. The Berne Convention had specifically included a right of reproduction in 1967. It is this most basic of copyrights which has posed the maximum difficulties in the digital environment also. The mute question was whether a digital copying is a reproduction or whether right covers only material reproduction. One of the provisions of WCT explains that reproduction right fully applies in the digital environment, in particular to the use of works in digital form.
Rights of Distribution and Communication to the Public –
This, again, is an area greatly affected by the digital revolution. Here, the issues are messier than in the case of right of reproduction. This is because the two rights really get merged in the digital world, as copies are transmitted not materially. The WCT looked into these issues and decided to extend right of distribution to ‘fixed’ copies and a wide scope of right of communication to the public as a separate one.
Management of copyright in the Digital Environment
Another field where digital technologies have brought in revolutionary changes is that of management and administration of copyright. The new technologies have made the administration and protection of copyright quite difficult. It has made reproduction, distribution and communication of works easier and within the competence of ordinary individual. Now copies can be made at an amazing speed with absolute fidelity to the original and transmitted over past distances and dispersed to millions of people in a few minutes or even seconds. This has opened up the possibilities of wide spread unauthorised copying and distribution of copyrighted works materially affecting the economic interest of the owners. The problems created by technologies need to be tackled by technologies. As Charles Clark put it, “the answer to the machine is the machine”. Provisions need to be made either in the Copyright Act or some other Act making it an offence to remove or alter any rights management information used in a copyrighted work.
Fair Use Provisions
The basic principle of copyright like other intellection property rights is the balance of the interests of the individual creator and that of the society at large Therefore, the laws while granting exclusive rights to authors or producers of creative works limit those rights in time. The WCT provides for such limitations and exceptions.
A major challenge posed by digital technologies to a user who is a member of the public is to the right to “informed decision making”. When works are to be bought through the digital network, the purchaser has a right to view, peruse or at least browse through the work before taking a decision on whether to buy the same or not. Law permits fair dealing for private non-commercial use whereas the public, commercial use can ordinarily be done only with the permission of the right holder. Adequate provisions will have to be made to ensure that the expansion of rights of copyright owners to the new digital media does not result in an unreasonable curtailment of the public’s right to access and use cultural resources of humanity as otherwise that may adversely affect cultural and technological progress.
Different International Approaches
One of the first countries to legislate on the treaty provisions was the United States through its Digital Millennium Copyright Act. The most discussed provision of the DMCA is the protection of technological measures. DMCA divides technological measures into two categories: measures that prevent unauthorized access to a copyright work and measures that prevent unauthorized copying or use or performance of a copyrighted work. It prohibits manufacture, distribution or import of devices that are primarily designed for the purpose of circumvention of technological measures that effectively protects the right of a copyright holder.
Australia is an example where digital rights are protected without compromising fair use exceptions. The Australian Digital Agenda Act which modified its copyright lawbans the preparatory activities that deal with circumvention like manufacture, distribution, import, sale, etc of devices that enable circumvention.
Japan also approached the issue differently. The new article 120 (iii) of Japan Copyright Act makes it a criminal offence to circumvent technological protection measure “as a business” in response to a request from the public.
The European Union Copyright Directive deals with technological measures in article 6(1), which states “member states shall provide adequate legal protection against circumvention of technological measures, which the person concerned, carries out in the knowledge, or with reasonable grounds to know, that he or she pursues that objective”.
Digital technologies facilitated putting in place technological protection measures that could prevent unauthorized use. While the international copyright community has arrived at these formulations to safeguard the interests of copyright owners in digital era, national governments have to place in position appropriate legislation. That will be the legal response to the technological challenges to copyright posed by inventions of different technologies. While enacting such legislations, national governments should take adequate care to protect the interests of the public. Otherwise, the rights may remain protect, but may not be contributing to further creative efforts either in the literary and artistic fields or in the techno logical field. A recession in creative world is neither in the interest of publishers nor of the community.