Transcript Slide 1

RETHINKING COPYRIGHT:
SHOULD IT BE INDIVIDUAL
PRIVATE PROPERTY OR
COLLECTIVE
PROPERTY?
Protection of Copyright in the Digital Content: An
Unfounded mix of Genuineness and Humiliation
Karni Singh Rajora, NUALS, Kochi
INTRODUCTION
Unlike tangible
assets to your
business such as
computers or
your office,
intellectual
property is a
collection of
ideas and
concepts. Here,
ownership
stands for a
bundle of rights
attached to a
thing, with a
common feature
of exclusiveness.
According to
Gandhi, all
property
belongs to God
and in his
concept of
trusteeship the
trustees have no
right to destroy
that property
deliberately and
wantonly.
Gandhi wanted
Zamindars to act
as trustees of
their lands and
allow them to be
used by tenants.
On ownership
Salmond noted
that “ownership
in its most
comprehensive
signification
denotes the
relation
between a
person and any
right that is
vested in him.
That which a
man owns in this
sense is in all
cases a right”.
THEORETICAL ANALYSIS OF THE
CONCEPT OF PROPERTY
The term “Public
property,” refers
to ownership by
a governmental
body such as the
federal, state,
county or city
governments or
their agencies
(e.g. school or
redevelopment
districts).
Property means
anything that is
owned by a person
or entity. Property is
divided into two
types:
Real property.
Personal
property.
According to John
Lock there are two
major justification of
private property:
(1) Occupation
Theory.
(2) Labor Theory.
Limitations to private
property according
to Lock:
(1) Sufficiency
Limitation.
(2) Spoilage
Limitation
According to
Hegel property is
an extension of
and embodiment
of ones
personality.
Limitations:
Extremely Needy
Individual
Property of
Others.
According to
Karl Marx
property is not a
relationship of a
person with a
thing, it is rather
a tool used by
the capitalist to
exploit labors.
When it comes to
the intellectual
property, the
property and
exclusivity are at the
core, the grant of an
exclusive right to the
creator in her artistic
work or to an
inventor in her
invention is the
primary objective of
copyright and
patent laws and has
all the characteristics
of a private
property right.
DIGITAL CONTENT: AN INDIVIDUAL
OR COLLECTIVE PROPERTY
Traditionally copyright protection is aimed at protecting the creation of author.
However, the internet raises an important question about the rights of
entrepreneurial copyright owners. (e.g. AOL/Time Warner, Corbis or Bertelsmann)
The internet technology also raises certain fundamental issues relating to the copyright
protection which includes the vulnerability to unauthorized use, lack of distinction
between ownership of content and ownership or carrier, the exploitation of copyright by
the users of content and the contract terms even in mass market transactions can be
individualized in the Internet environment.
A contract provides for transfer of prerogatives from copyright owner to the
intermediary. Which may take place by means of a license. However, the current
Copyright Amendment Bill, 2010 is unclear as to the method of such transfer by means
of a license. [Sec. 30. Attribution of License]
An harmonized approach of the two conflicting ideologies can be seen in the case
of “Project Gutenberg”. Wherein all the copyright expired works of learned
authors have been put up for the access of general public. Another example can be
seen in the case of “googlebooks” and “amazon.com” which provides limited access
to the copyright protected works of different authors.
COPYRIGHT: A CONCEPTUAL
UNDERSTANDING
To qualify for
copyright
protection, a
work must be
original to
the author.
The term
copying as
used in
different
copyright
protection
legislations is
considered
synonymous
to
infringement.
In reality the
two terms
are different.
Moreover, Cases
involving
computer
programs, reflect
a broader
cultural gaze
and do not rely
to the same
extent on notions
of autonomous
artistic creation.
Another problem
lies with the
judicial doctrine
developed
initially by courts
and later
codified of ‘fair
use’ which
recognizes that
certain acts of
copying are
permissible if the
criteria laid
down is satisfied.
However, the
spread of
Information
and
Communicati
on
Technology
(ICT) and ICTenabled
copying
technology is
supposed to
affect the
markets for
digital and
digitalized
products.
Another area
of conflict is
regarding
the level of
protection
offered in a
society.
Besides
creative labor,
efforts and
investment of
personality the
intention to
produce a
work of
authorship is
also very
important. For
creation of a
copyrighted
material an
individual
derives help
from the
community in
one way or the
other. Thus, the
people at
large have a
right of access
to such
creation.
The agreement
we share in
society to
commit ourselves
to the
maintenance of
social and
cultural stability
is apparent in
the many ways
we regulate
ownership of
different kinds,
including
intellectual
property. It is
not necessary
that the
agreement and
commitments we
collectively
share are made
explicit.
Although the public does not have a human
mind or a biological brain, our collective
commitment to and responsibility for the
preservation of the cultural and social
realities constitute a collective intentional
state to participate, contribute and control
certain events and processes. This includes
a collective intention to participate in the
making process of authorial and artistic
commodities which define the essence of
our culture.
- Lior Zemer
STATISTICAL ANALYSIS


In the United States, 30 % of software available on
internet is infringed.
Downloads through BitTorrent and eDonkey for the
year 2008. Source: www.BayTSP.com
Rank
Country
Unique Users
Downloads
1
Spain
172, 841
104, 451
2
France
39, 816
28, 236
3
USA
15, 955
7, 459
4
Israel
13, 492
9, 672
5
Poland
12, 267
6, 877
6
Brazil
12, 213
7, 121
7
Italy
11, 001
7, 632
The research world over showed movies made up 40 per cent of illegal
downloads, TV shows at 30 per cent. Music makes up 17 per cent, ahead of
pornography at 12 per cent.
CD sales slumped in recent years in terms of value and volume according to
the International Federation of the Phonographic Industry (IFPI).
Online music sites now already reach over one-third of the online population.
[Jupiter Media (2002)].
A report published in March 2009 by United States-India Business Council
(USIBC) and Ernst and Young India, claims that as much as Rs.16, 000 crores
are lost due to piracy. Alongside, as many as 80,000 jobs are lost directly
as a result of theft and piracy, afflicting India’s entertainment industry.
SOME LEGISLATIVE INITIATIVES
Statute of Anne, 1709
The Royal Charter to the
Stationers' Company of
London, 1557
Indian Copyright Act,
1957
Online
Copyright
Infringement
Liability
Limitation Act, 1998
(OCILLA)
Digital
Millennium
Copyright Act, 1998
(DMCA).
COPYRIGHT AND THE PEER 2 PEER
FILE SHARING NETWORKS
The P2P file sharing
networks aim at providing
access to the copyright
material through a unique
method of file transfer.
P2P networks have been
targeted by industry trade
organizations such as the RIAA
and MPAA as a potential
threat.
It has let to the sharing of a
lot of private copyright
material by the individuals
collectively. It can be
considered as a major
challenge in enforcing
copyright.
The courts have completely
overlook the advantages of
P2P networks in their urge to
uphold the copyright of music
companies and producers.
“There’s no way to rule innocent men. The only power government has is the power to
crack down on criminals. When there aren’t enough criminals, one makes them. One
declares so many things to be a crime that it becomes impossible for men to live without
breaking laws.”
- Ayn Rand
Initiatives to formulate the Anti-Counterfeiting Trade Agreement (ACTA) by
developed nations.
The failure to legislate and actively promulgating laws similar to the DMCA in
other countries a monoculture is created where a virtual monopoly on cultural
goods is created, generating something of a cultural imperialism.
In P2P networks, provide resources, which may include bandwidth, storage
space, and computing power. As nodes arrive and demand on the system
increases, the total capacity of the system also increases.
The distributed nature of P2P networks also increases robustness, and in pure
P2P systems by enabling peers to find the data without relying on a
centralized index server.
P2P NETWORKS: CASE LAW ANALYSIS
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984): Copying
“technologies” are not inherently illegal, if substantial non-infringing use
can be made of them. This decision, predating the widespread use of the
Internet applies to most data networks, including peer-to-peer networks,
since legal distribution of some files can be performed. These noninfringing uses include sending open source software, creative commons
works and works in the public domain.
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001): The Court held
the P2P networks as illegal and affirmed vicarious liability for
infringement. Here, Napster lost the case in the District Court and
appealed to the US Court of Appeals for the Ninth Circuit. Although the
Ninth Circuit found that Napster was capable of commercially significant
non-infringing uses, it affirmed the District Court's decision. On remand, the
District Court ordered Napster to monitor the activities of its network and
to block access to infringing material when notified of that material's
location. Napster was unable to do this, and so shut down its services.
INTERNATIONAL INITIATIVES
The Berne Convention of 1886 grants the exclusive economic
rights to a creative work’s translation, reproduction,
performance, and adaption.
The treaty has been revised in 1914, 1928, 1948, 1967, and
1971.
The World Intellectual Property Organization (WIPO) Copyright
Treaty (WCT) and the WIPO Performances and Phonograms Treaty
(WPPT) were intended to translate the content of the Berne
Convention to the new IT environment.
The WIPO Copyright Treaty, 1996 set a standard for online
copyright laws around the world. However, India is not
signatory to the above Treaty.
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) AND THE EUROPEAN DIRECTIVE
ON COPYRIGHT: PROTECTION OF COLLECTIVE OR PRIVATE OWNERSHIP
§1201(a)(1)(A) of DMCA prohibits the act of circumventing a technological measure that “effectively
controls access” to a work protected by copyright. Also, there is no exception for archiving, nor is there a
general “fair use” type exception written into the statute. Civil and Criminal liability can be imposed under
§ 1204 (2000) for the violation of DMCA.
Directive 2001/29/EC of the European Parliament and of the Council speak on the harmonization of
certain aspects of copyright and related rights in the information society.
According to Article 6 of the Directives, member States shall provide adequate legal protection against the
circumvention of any effective technological measures, which the person concerned carries out in the
knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
Like DMCA, the protection offered to the users of the Digital Content by the EU Directives is very limited
and is in huge part the consequence of the lobbying to the European Parliament.
Unlike Section 1201 of the Digital Millennium Copyright Act, which only prohibits circumvention of access
control measures, EU Directive also prohibits circumvention of copy protection measures, making it
potentially more restrictive. In both DMCA and EU Directive, production, distribution etc. of equipment
used to circumvent both access and copy-protection is prohibited. Under DMCA, a potential user who
wants to avail herself of an alleged fair use privilege to crack copy protection (which is not prohibited)
would have to do it herself since no equipment would lawfully be marketed for that purpose. Under EU
Directive, this possibility would not be available since circumvention of copy protection is illegal.
DIGITAL RIGHTS MANAGEMENT (DRM) UNDER THE
INDIAN COPYRIGHT AMENDMENT BILL, 2010
Digital
Rights
Manage
ment
refers to
a system
which is
used to
control
access
to, and
possibly,
the use
of
copyrigh
ted
works
through
technolo
gical
means.
The
Copyright
Act, 1957
did not
contain
any
provision
specifically
relating to
DRM.
However,
the new
2010 Bill
introduced
Sections
2(xa), 65A
and 65B
which deal
with DRM.
The
provisions
have
exacerbated
the ongoing
debate
between the
collective
and private
ownership of
copyright as
Sec. 65B
which
protects
Rights
Management
Information
may not
permit a user
to even
change the
file format
of the digital
content.
The provisions in
the Bill relating
to the
international
exhaustion of
rights with
respect to
copyright also
require a
revision as in its
present form it
harms the
domestic
publishers,
authors, students
and would
provide a
suitable
dumping ground
of
internationally
unsold books.
The draft Bill
reflects nothing
but the
extensive
lobbying done
by the copyright
owners to
adapt the laws
suitable to their
needs. It also
reflect the urge
to make laws in
tune with DMCA
and EU
Directive
without
considering the
requirements
and conditions
prevailing in the
domestic
market.
TECHNICAL PROTECTION MEASURES (TRM) UNDER
THE INDIAN COPYRIGHT AMENDMENT BILL, 2010
The TRM are sought to be enforced in India by virtue of amendment in the
Act and a new Sec. 65A has been added to that effect.
The guiding force behind this provision is the “super 301” report by the US
Trade Representative which continues to operate harsh on the third world
countries.
Moreover, it does not give any rationale as to the need for making the
domestic law compliant with WIPO Copyright Treaty as India is not
signatory to it.
Though the Bill does not criminalize the manufacture and distribution of
circumvention tools unlike DMCA. It fails to define the definition of the term
"facilitate“ which in its present form will include the coder, the
distributor/trafficker, the website or the person who provides technical
assistance.
ALTERNATE MECHANISMS TO BALANCE
THE CONFLICTING INTERESTS
A one time extra
cost may be
recovered from the
sales of mp3
players, i-pod’s &
other digital
copying, recording
and data storage
materials.
A monthly subscription fee
guarantees the benefits
from the music user to the
IPR owner(s).
The rates of copyrighted
material should be revised
with the passage of time
and considering the
purchasing power of the
people from poor and third
world countries.
The online sites
promoting peer to
peer file sharing
networks must have
a revenue sharing
agreement with the
owners of
copyright.
CONCLUDING REMARKS
The copyright law demands an idea/expression dichotomy. Which becomes very difficult to prove
in the area of software's and computer programme’s. The copyright over a software indirectly
amounts to the monopolization of the way in which it is written. The draftsman of the Indian
Copyright Act, 1957 did not have computer programme’s and software's in their mind while
stipulating the period of authors' life + 60 years as a period for copyright protection.
More so with the rapid advancement in the technology the duration of authors’ life + 60 years as
copyright protection period demands a redrafting by the legislators specially in the area of IT
enabled services. Copyright in software's in its present form is not aiming at the protection of the
creativity or originality rather it results in creation of monopoly.
However, one cannot justify the online infringement activities growing at an unprecedented pace. As
the inadequate and improper copyright regime will be an injustice for the owners of digital
copyrighted material. It calls for striking a balance between the needs of the society (collective
property) and the protection of investment, creativity and originality (private property).
The infringement activities carried online may have complete disrespect for the jurisdictional
boundaries of a copyright protecting nation. There is a need for international mechanism and cooperation by which the cross-border infringement activities could be checked.