Intellectual property protection, which includes copyright, aims at legal protection to an inventor from others copying his/her work, and detracting from his/her rewards.  The first law on copyright, England’s Statute of Anne, stated that its purpose was “the encouragement of learned men to write useful books”, that is by ensuring that their works would not be copied.  Since then, our legal system has evolved considerably. The modern system of intellectual property protection rewards inventors for innovations on the expression of new ideas, by granting them a limited monopoly in exchange for putting into use and bringing into the public domain, new ideas.

However, with the rapid development of communications technology, particularly the Internet, all prevalent and accepted notions of copyright protection have been challenged, and their inadequacies exposed.  It has been stated that “the internet is the closest thing to true anarchy that ever existed” and that it “crosses national boundaries and answers to no sovereign. It is literally lawless”. This article deals with the enforcement of copyrights for materials on the Internet. Widespread use of technology in recent times, has led to the infringement of online content across the world.  This presents the practical problem of determining the relevant jurisdiction over the offender, and therefore, in accordance with the Berne Convention, 1961 (which is administered by the World Intellectual Property Organisation), the principle of ‘National Treatment’ has been adopted. This particular doctrine entails that a foreigner holding copyright over content posted on the internet is accorded protection by the country in which the infringement has taken place, similar to that which is extended by it to its own citizens.  This rule applies to India, as it is a signatory to the convention.

Literary and artistic works, encompassing text, music, films, databanks, sculptures, and paintings, are considered copyrightable.  So long as the work is original, it is protected. In some legal systems, a work need not necessarily be published to enjoy copyright protection, although Indian law requires publication under the Copyright Act, 1957.  However, in other legal systems mere “fixation”, that is, existence of the work in some permanent form, is sufficient criteria to accord copyright protection.

The Internet and electronic communications raise serious questions as to whether electronic texts are copyrightable, given that there is no established standard of sufficiency for “fixation” prior to transmission.  For example, an e-mail message communicating the original thoughts of the sender may not be regarded as ‘fixed’ text, if the sender has not saved it onto the hard disk of his computer or printed a copy before putting it in transmission.  In such a case, it is a challenge to prove the existence of copyright in the text. Similarly, messages posted by users of the bulletin board of a website are periodically deleted by the Webmaster, thus affecting fixation of the text.

These questions give rise to serious doubts about whether information on the net is copyrightable.  Since the law on this subject is not well defined, the practice of governments faced with this problem has been to revise and modify, rather than to repeal existing legislation.  The position in the USA and UK is that electronic texts are copyrightable, as they are fixed albeit in electronic form.

Certain issues regarding copyright are exclusive to the Internet.  The first is the speed and the ease with which text can be copied. Digitization multiples the number of reproductions that can be made of a work, the speed with which these can be distributed, and the geographical area and the direction in which they can simultaneously travel.  Even work that has appeared in other conventional forms of publication, such as print, and has been copyrighted in that form, can be conveniently scanned and uploaded to a bulletin board system, from where any number of users may copy it. Digitization also facilitates the integration of portions of text from varied sources without duly acknowledging the original author, making detection of infringement even more difficult; and this problem can assume very grave proportions in the case of web users who distribute text incognito.

Another pertinent question here is that of pinning down liability for infringement of copyright on the Internet.  This is a debatable issue. In an American case, Playboy and Frena, the visitor of a commercial bulletin board scanned pictures from Playboy magazine into digitized form, and pasted these on a bulletin board accessible to all users.  The court ruled that the content provider (ISP) would have strict liability for copyright infringement, although it was unaware of the user’s act. ‘Innocent infringement’, it was ruled, still constituted infringement. However, in another case, Chubby, Inc. v. CompuServe, Inc., the court recognized the great volume of uploads to large commercial systems, and their liability to screen reliably, the content of each of these uploads for copyrighted material.

Another issue arising from the ever-increasing use of the Internet has been the growth of trademark dispute pertaining to domain names.  Some of the common problems are those of infringement, where the registrant of a domain name intentionally registers a Domain Name that is similar to another already in use, to try cash in on the well established reputation of that domain name, the other is cyber squatting, where a person speculatively registers a domain name, primarily for the purpose of selling it to the owner of the trademark related to that domain name.  Such deceptively similar use is illegal under existing trademark laws.

However, although domain names enjoy this legal protection, one of the most efficient and preferable methods of resolving these disputes is by approaching the WIPO Arbitration and Mediation centre, which commenced operations in December 1999.  One of WIPO’s most popular Uniform Dispute Resolution Policy (UDRP), which provides holders of trademark rights an administrative mechanism to resolve disputes arising out of bad faith registration of domain names corresponding to those trademark rights. A complaint may be filed from any corner of the world, regardless of the location of the registrant, the complainant, or the offending party.  The UDRP is extremely efficient, and can be activated online for the fees prescribed. Independent panels appointed by the WIPO Arbitration and Mediation Centre decide all disputes under the UDRP. By way of relief, the WIPO centre can order the transfer of a domain name to the complainant, or cancel the registration altogether.

Apart from these measures, certain technological means have been devised to aid the detection of copyright infringement on the web.  The most revolutionary of these is ‘Digital Watermarking’, which enables information to be embedded with digital content. This information could pertain to say, the copyright holder’s identity, or to licence rules applicable to the content.  Each copy receives a unique watermark, to enable the identification of the end user in cases of illegal use. However, this technology is still at an experimental stage, and a standardized model for its implementation is yet to be formulated.

As for the legal aspects of this issue, in December, 1996, the WIPO concluded work on 2 treaties (WCT and WPPT), designed to bring copyright protection into the digital age. Their main aim is to protect web content from unauthorized copying.  The WIPO directions require each signatory country to enact national legislation along the guidelines provided by it in these treaties. Thus, India, having notified these treaties, is now obligated to suitably incorporate the provisions of those treaties in its existing national laws. The Administrative Department of the Ministry of Human Resource Development is currently in the process of making amendments to the Copyright Act, 1957, to include suitably, the provisions of these treaties.  

In conclusion, it may be reiterated that the protection of copyright on the Internet is a very significant issue.  Without adequate protection of the law, individuals would hesitate to post information on the Internet, thereby defeating its very purpose, that of a worldwide web of knowledge.  The only possible solution would be the adoption of existing copyright law along with new forms of encryption techniques to protect copyright material on the Internet.

One of the most efficient and preferable methods of resolving these disputes is by approaching the WIPO Arbitration and Mediation centre, which commenced operations in December 1999.

Certain technological means have been devised to aid the detection of copyright infringement on the web.  The most revolutionary of these is ‘Digital Watermarking’. However, this technology is still at an experimental stage, and a standardized model for its implementation is yet to be formulated.

In an American case, Playboy and Frena, the visitor of a commercial bulletin board scanned pictures from Playboy magazine into digitized form, and pasted these on a bulletin board accessible to all users.  

BY LAWZ BUREAU