The Modern Copyright Dilemma: Digital Content Ownership and Access

Introduction

The Intellectual property laws are designed in such a way that not only reward the creator of his intellectual creation thereby incentivising other creators for further innovation, while balancing the rights of the creator with the right of the society to access information or knowledge. The domain of copyright deals with the literary, musical, dramatic, and artistic works, and cinematograph films. Before the digital era, copyright protected tangible art or works, allowing authors to easily regulate usage, copies, and earnings. With the advancement of technology, cyberspace has become a platform, where the artist can showcase their art, talent, skills, or intellectual labour and the audience can watch it or read it or access most of the content for free. The ease with which content can be shared globally also raises concerns for the creators with respect to tracing copies of the work or theft of their intellectual labour on one side, while on the other hand restricting information would lead to a bar on the right to information of the public. There is an ongoing debate of whether the law should do more to protect the rights of the creator or if doing so would restrict the rights of the users. The crux of this debate is the argument that if the theft of restricted digital content is for the purpose of knowledge and research, it should be considered as an act done under ‘fair use’ and ‘fair dealing’ of the content.

Development of Copyright Law

Protection of Intellectual property rights has always been in existence among various sections of the society. The connecting line of recognition of copyright can be drawn back to the ancient times, when Roman jurists like Gaius and Justinian discussed the concepts of incorporeal property, to the enlightenment era where philosophers such as John Locke and Immanuel Kant contributed to the aspects of intangible property (such as copyright, trademark, etc). The first codified statute dealing with copyright protection of printed books dates back to 1710, known as British Statute of Anne. As the world’s first copyright statute, it offered 14 years of legal protection for works published and 21 years of protection for works already in print. It is obvious from the early statutes that copyright protection was initially solely extended to books. The Statute of Anne marked the beginning of copyright protection in the United Kingdom, whereas in France, the first statute granting copyright protection was enacted after the French Revolution known as the Declaration of the Rights of the Genius in 1793, which gave authors protection for ten years (Moh. Zafar Mahfooz Nomani, 2023). At international level, Berne Convention was the first major convention established in 1886 to govern copyright, and USA became a signatory to Berne in 1989. After Berne Convention, TRIPS Agreement, 1994, adopted by WTO was the second major international treaty, dealing with the copyright protection. TRIPS Agreement accepted the Berne Convention except Article which states that copyright protected work shall enjoy the copyright protection in all countries of the union.

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Later, due to digitalization of content and germination of internet, copyright laws faced several challenges to the way the exclusive rights of the copyright owner were under threat. These proliferating challenges resulted into the two modern copyright treaties: the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty, both were enacted in December 1996 (Atanasova I. , 2019). India first witnessed its own Copyright Act in the year 1847, which was drafted under the British Rule. Later, in 1914, Copyright Act was amended which was highly influenced with the Copyright Act, 1911 of Britain, such as both the legislation shared resemblance in the duration of copyright protection, focused on the protection of literary works, and had similar provisions regarding the concept of public domain and exceptions. Even the latest Copyright Act, 1957 has extensively borrowed provisions from the Copyright Act of United Kingdom of 1956 (Copyright Office, n.d.). Till now, the Copyright Act, 1957 has been amended five times in the year 1983, 1984, 1992, 1994 and the latest in 2012 which included the provisions for dealing with the digital content and Digital Rights Management Techniques. 

Copyirght Act, 1957 & Digital Rights Management

Copyright Act, 1957 has the provisions for unauthorised use of a copyright protected work and with the amendment made in 2012, it also protects the digital work, which is copyright protected. The defiance arises when the content is digitalized because monitoring internet to prevent illegal access is a challenging task. The recent amendment in 2012 included provisions like Section 65A and 65B which authorises and protects the actions of DRM. Digital Rights Management emerged as a result of ubiquitous copyright infringement related to digital content. DRM work mechanism to protect the digital copyright work is to put barriers in places to prevent the stealing of the digital content. It creates ‘Secure Distribution’ of content which generally use encryption and digital watermarks (Pandey). Secure Distribution is a means of distributing digital content using encrypted codes which prohibit copying and limits the number of devices a product can be accessed from. Section 65A makes circumventing effective technological measures with the purpose to infringe on the author’s rights a penal offense. The second clause specifies some exceptions to the overall rule established in the first clause. Circumvention for the sake of undertaking cryptography research, performing any legitimate investigation, taking steps in the interest of national security, and so on are examples of exceptions. Section 65B makes it a crime to remove or alter any rights management information, or to distribute, import for distribution, broadcast, or communicate copies of the work. The provisions impose a penalty of a term of up to two years in prison and a fine for violating the provisions.

Digital Rights Management & Fair Use

If everything is so well designed, then where is the issue? India’s copyright statute is fulfilled with all the provisions such as protection of copyright work including digital, the punishment, rights of the creator, fair use, etc, however the problem arises with the ambiguity in few of those provisions. Section 65A of the act uses the words ‘circumvention’ and ‘effective technological measure’ however, these words are nowhere defined in the whole act. Similarly, section 65B does not provide explicit words for how altering, compressing images/videos or changing data units can mess up digital watermarks. This section also lacks in taking intention of the user ruining the watermarks, because sometimes there can be a situation where any person might end up ruining digital watermarks without intending to (Chakraverty, 2015). In such cases, the defence of fair use is inapplicable and still the person messing up with the watermark unintentionally, should not be held liable for his/her act. Fair use is the defence to infringement of copyright, when such protected content is used for a fair purpose. Despite Section 52 of the act defines the term ‘fair use’ and covers exceptions for ‘fair use’ of the copyright protected work, India continues to grapple with several questions concerning fair use. The exceptions present under section 52 are very limited as compared to international copyright statutes which restricts the access to information contained in protected works. Unlike USA, India’s Copyright law does not have wider fair dealing provisions along with those which addresses to the problems emerging due to the technological advancements and modern-day requirements (Bhardwaj, 2016).

With digitalization, widespread piracy is taking place worldwide, making it increasingly intricate to navigate the realm of fair use doctrine. Determining whether an infringement aligns with a fair purpose has become a real challenge within this web of piracy. Also, deciphering what qualifies a ‘fair purpose’ is a recurring question that arises in most of the cases. Section 52 (1)(i) states that the reproduction of any work by a teacher or a pupil in the course of instruction or as a part of the question to be answered in an examination or in answers to such questions, shall be considered as fair dealing and does not count as an infringement of copyright protected work. Yet, the case of The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr., the entire legal battle was fought with the presumption of section 52(1)(i).  The plaintiffs contended that Rameshwari Services’ inclusion of portions of their copyrighted published works in coursepacks on the authority of the University of Delhi amounted to institutional sanction of copyright infringement because Section 52(1)(i) of the Copyright Act would not apply as Rameshwari could not be equated to reproduction by a teacher to students for the purpose of knowledge instruction. On the other side, the university argued that Rameshwari Photocopy Services was granted a license to operate a photocopy shop on its campus in order to allow students to photocopy for educational and research purposes. Further it was contended that there is no limit on the quantity of reproduction under Section 52(1)(i) of the Copyright Act, 1957, and that because Section 52(1)(i) covers reproduction for educational purposes, unlimited photocopying would be permitted (The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr, 2016).

The tussle between free access under fair dealing and limited access which the DRM promotes is witnessing a escalation where on one hand the users have their own contention of restriction on their right to information and knowledge and on the other hand the creators are seeking to protect their economic as well as moral rights, which often get compromised with respect to digital content due to the ease of accessibility and the increase in piracy.

Concerns of the Creators

The very purpose of protecting intellectual property rights is to reward the creator for his/her intellectual creation, to encourage the creative endeavours for their growth, and to protect the creation of one’s intellectual labour. Copyright law provides certain exclusive rights to the creators and all those rights are categorized under two types. First, economic rights, which allow the owner of rights to derive a financial reward from the use of his works by others. These rights are transferrable for financial benefits. The second type of rights, moral rights, which can never be transferred. These rights always remain which the original author of the work and are also referred as right of authorship and right of respect.

In the age of digitalization, the exclusive rights granted to the creators are being compromised. First sale doctrine is the device as per which the second sale of the copyright work, can be without the requirement of authorization or consent from the copyright owner. However, for the doctrine to apply, the law demands that the ‘first’ sale of the content be authorized or legal. Considering that the content is in cyberspace, and the fact that it can be stolen away in a snap of a finger, the creator’s right to authorize the control of first sale also gets taken away (Balganesh, 2016). The art, literary works, books, and more, everything is being produced in the digital format. Downloading anything from internet automatically involves creating a copy or reproducing the copy of the material, affecting the rights of creators, such as right of distribution and rental. Consequently, creators experience the diminishing of their economic benefits from their intellectual creation. Creators’ not meeting their expectation for the benefit they provided to the society, lowers the motivation for further innovation and investment in their area of interest. The copyright owners see themselves as under threat from a flood of cheap, easy copies and a dramatic increase in the number of people who can make those copies. Because of the enormous volume of illegal uses and the low return on suing a single person, copyright owners seldom sue those who exchange software, video, or music files over the Internet. Instead, copyright holders sue direct facilitators such as Napster, makers of software that can be used to share files, those who provide tools to crack encryption that protects copyrighted works, search engines that help people find infringing material, eBay, and Yahoo Auction, and even credit card companies that assist individuals in paying for infringing activity (Atanasova I. , 2019). Even after suing these facilitators, the infringers still escape the liability.  With such increase in the availability of information in digital style, we are in the midst of an intellectual, moral, and legal struggle over the future of copyright- the struggle over the future of rights to duplicate and transform information (Solum, 2005)

URGE OF THE USERS

The information and communication society has gone through major change and developments with the technological advancements. With this, the culture of research, teaching, gaining knowledge has also shifted to the contents available online. The more people are sharing their work over the internet, the more they are being protective of their intellectual creation. The Intellectual Property rights does not only aim to protect the rights of the creator, but also not let them enjoy the monopoly of their work. The IP rights are designed in such a way that balances the rights given to the owner of the IP and the need for benefits to flow to society. This need for the benefit of the society is nonetheless mentioned under section 52, i.e., ‘fair use’ and ‘fair dealing’.  Although this particular section covers various situation where illegal access to copyright work will be considered as legal, yet there had been various issues came up which raises a question on ‘fair dealing’. In the case of Hubbard v. Vosper, Lord Denning expressed that “It is impossible to define what is ‘fair dealing’. It must be a question of degree” (Hubbard and Another v. Vosper and Another, 1971).

Availability of information in digital format has made it difficult to identify whether the purpose of the infringer is fair. Accessibility to information depends on two factors, i.e., availability and affordability. The information available online is in abundance, however not everyone is able to afford it. Restriction to copyright work is justified in all sense, however it should not, when it comes to gain knowledge or for the purpose of education and research. There is DRM mechanism which restricts access to information of such people who wants to use it for the purpose of knowledge. Then there is ‘TIER Model’, which proposes that what should be controlled is not the content posted, but the way or the means through which the content or work of the creator is posted, and the way in which it is advertised. The example of the application of this model is the way Jstor works. Jstor is an online digital library that caches a number of journals on subjects of philosophical and sociological interest. It is subscription based and allows users to access content originally published in journals which hold the copyright. Consequently, what is regulated is the way users are allowed to access the content and not the content itself. So, instead of letting users download for free, Jstor only allows the user to purchase and then download the content online. Although this reduces the risk of users interfering with the content but it also cuts down the accessibility of information for those students who cannot afford to buy its subscription. Consumers International (2006) noted that when the cost of educational materials is prohibitive, it reduces educational opportunities (Ngwenya, 2015).

The next issue arises is to what extent the purpose of research is considered. The interpretation of the same has been done by the Indian courts in various cases. In the case of Blackwood and Sons Ltd. v. A. N. Parasuraman, the Madras High court held in that case that the defendant’s guides did not constitute works of research, as “private study only covers the case of a student copying out a book for his own use, but not the circulation of copies among other students” (Blackwood And Sons Ltd. And Ors. vs A.N. Parasuraman And Ors., 1958). However, the Delhi High Court in the case of The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. case, provided for a different interpretation of the clause, and noted that the protection for an act conducted by a student for his own research would also extend to the same act of a university for reasons of limited days of instruction, preserving the book against damage from repeated photocopying, and so on (The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr, 2016). The takeaway from these two cases is that only universities acting as a facilitator would be protected under ‘fair use’ for private research, otherwise students would be unable to access the same copyright work for their own research, if not supported by their university.

CONCLUSION

Shelley Drabik said, “It’s best to reframe thinking about sharing from “Who needs to know” – which is hard to define- to “Who’s not permitted to know this information?” This way, people eligible to know certain information can access it, even if we didn’t know they need it” (Drabik, 2018). In conclusion, the evolving structure of Copyright law in the digital era requires a delicate balance between safeguarding creators’ interests and ensuring equitable access to knowledge to the society. The emergence of digital content has posed challenges in implementing fair use doctrine and determining what constitutes as ‘fair purpose’. The conflict between the DRM limiting the access and principles of fair use has complicated the situation. As society moves further into the digital era, maintain a harmonious balance between these opposing interests becomes crucial for fostering innovation, preserving the right to access information, and nurturing creative and educational pursuits.

Author: Vishakha Burnwal, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing

References

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