DIGITAL RIGHTS MANAGEMENTPOSITION OF LAW

INDIA – TO GAIN OR TO LOSE

DR. ANIRBAN MAZUMDERNATIONAL UNIVERSITY OF JURIDICAL SCIENCES

CALCUTTA

BACKGROUND OF COPYRIGHT LAW

• Indian Copyright Act has been amended several times to respond to challenges posed by the development of new technologies.

• Amendments have been made in 1983, 1984,1992,1994 and 1999 to accommodate satellite broadcasting, computer program and digital technology.

IMPACT OF INTERNET• With the advent of new technologies, Internet

has become world wide duplicating machine enabling people to make duplicate copies and distribute them all over the world at low cost.

• International Intellectual Property Association Special Report on India recorded loss due to pirated musical products to $ 36.2 M and for pirated software products to $ 1060 M.

• Whether this data is an indicator for India to adopt widespread DRM protection measures?

INFLUENCE OF DIGITAL TECHNOLOGY

• Digital technology has not only created new risks from right holders but also created opportunities for widespread cost effective distribution, as well as new tool for controlling content.

• Number of technologies have been developed to make digital works difficult to copy, distribute and access without necessary permission. These technologies are popularly known as Digital Rights Management (DRM) or Technology Protection Measures (TPM).

DRMs

• Access Control Method – Digital Object – contents are encrypted and then wrapped in a software “envelope” so that even if some one receives a copy of it may read the envelope but not the content without paying royalty.

• Rights Control Method – it prevents consumer from manipulating content.

• Proprietary Viewer – it prevents consumer from unauthorised use – if payment has been made for viewing a material then it can not be copied.

DRMs• Digital Watermarks – it allows authors to trace

the source of a work and any unauthorised distribution. If a product has watermark with unique identifier, any copy with watermark can be linked to the original and thereby can be traced the source of unauthorised copies.

INTERNATIONAL TREATY• WIPO Copyright Treaty and WIPO Performance

and Phonogram Treaty 1996 has offered audio visual industry a legal basis to protect their works through technological measures.

• Contracting parties are allowed to take adequate and effective measures for regulating devices and services intended for technology defeating purpose – Anti Circumventing Provision.

• Treaty doest not define DRM, rather leaves it on member countries to define it.

RIGHT MANAGEMENT INFORMATION

• Information which identifies the work, author of the work and any rights in the work and any number or code that represents such information when such information is attached to a product or connected to any communication to public.

• Unlike DRM, RMI does not create a right for authors but seeks to remedy if any act induces infringement relating to such product or service.

COPYRIGHT ACT

• The objective of Copyright Act is to offer balance between rights of the authors and owners on one hand and larger public interest, particularly education, research and access to information.

PROPOSED AMMENDMENT• “65A. Protection of Technological Measures• (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.

• (2) Nothing in sub-section (1) shall prevent any person from,—• (a) doing anything referred to therein for a purpose not

expressly prohibited by this Act:• Provided that any person facilitating circumvention by another

person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or

PROPOSED AMMENDMENT• (b) doing anything necessary to conduct encryption research

using a lawfully obtained• encrypted copy; or• (c) conducting any lawful investigation; or• (d) doing anything necessary for the purpose of testing the

security of a computer system or a computer network with the authorisation of its owner; or

• (e) operator; or• (f) doing anything necessary to circumvent technological

measures intended for identification or surveillance of a user; or

• (g) taking measures necessary in the interest of national security”

PROPOSED AMMENDENT• Sec 65 B – Protection of Rights Management

Information – Any person who knowingly (i) removes or alters any Rights Management Information without authority(ii) distributes, imports for distribution or communicates to public without authority copies of any work or performance, knowing that electronic rights management information has been removed or altered without authority shall be liable for imprisonment which may extend to two years and shall also be liable to fine

PROPOSED AMMENDMENT• Provided that if the rights management

information has been tampered with in any work, the owner of copyright in such work may also avail civil remedies provided under Chapter XII of this Act against the persons indulging in such activities.

PROPSOED AMMENDMENT

• Sec 2 xa – Rights Management Information means (a) the title or other information identifying the work or performance;(b) the name of the author or performer;(c) the name and address of the owner of rights;(d) terms and conditions regarding the use of the rights; and(e) any matter or code that represents the information referred to in Sub-clauses (a) to (d), but does not include any device or procedure intended to identify the user.

WHY AMMENDMENT• India has not signed WIPO Copyright Treaty, so it

is free from any obligation for enacting such provision.

• These provisions creates TRIPs plus standard which India is not obliged to create.

• It is to be assessed whether it is necessary for India to enact such provision.

• Developed countries enter into international intellectual property agreement only when they are net exporter of intellectual property to receive benefit from strengthened international standard.

WHY AMMENDMENT• International Intellectual Property Alliance

recommended India in 2007 to adopt standards of WCT and WPPT.

• Hollywood entertainment studios are lobbying for these changes for tilting balance towards copyright owners.

• Commission on Intellectual Property, UK observed “For developing countries where Internet connectivity is limited and subscriptions to online resources unaffordable, anti circumvention legislation may exclude access to these materials altogether and will impose heavy burden and will delay participation of these countries to global knowledge based society.”

OBSERVATION• These provisions may concentrate exploitation

of copyrighted materials with powerful corporations and it may seriously erode common cultural heritage.

Thank you