RESEARCH ARTICLE ON INTELLECTUAL

PROPERTY LAWS

TITLE: ANTI-CIRCUMVENTION LAWS IN INDIA

SUBMITTED BY – KISHITA GUPTA

SUBMITTED TO – MS. ARUNIMA SHATRI

SEMESTER – 5

BATCH – (2017-22)

SECTION – CR B

ROLL NO. – 10
 Intellectual Property Rights

DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this project
assignment has been copied in any unauthorized manner and no part of it has been incorporated
without due acknowledgment.

I have projected and studied the Anti – Circumvention laws in India. The history of these laws
and its inspiration and the comparison with the Foreign Laws are also further explained in the
present paper.

Kishita Gupta

Semester 5

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TABLE OF CONTENTS

TABLE OF AUTHORITY ...................................................................................................... 4

INTRODUCTION.................................................................................................................... 5

RESEARCH METHODOLOGY ........................................................................................... 7

DATA SOURCES .................................................................................................................. 7

RESEARCH OBJECTIVES .................................................................................................. 7

RESEARCH METHODOLOGY ........................................................................................... 7

INTERNATIONAL TREATIES ............................................................................................ 8

DOMESTIC IMPLEMENTATION OF THE TREATIES ................................................. 9

EUROPEAN UNION ............................................................................................................. 10

UNITED STATES OF AMERICA....................................................................................... 11

INDIAN LAWS ON ANTI - CIRCUMVENTION ............................................................. 12

CRITICAL ANALYSIS OF THE INDIAN LAWS ............................................................ 15

CONCLUSION ...................................................................................................................... 16

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TABLE OF AUTHORITY

Cases

1. Chamberlain Group v Sky link Technologies, 381 F 3d 1178 (2004) ......................... 11

2. Davidson & Associates v Jung, 422 F 3d 630 (2005).................................................. 11

3. Lexmark Int’l, Inc v Static Control Components, Inc, 387 F 3d 522 (2004)............... 11

4. MDY Industries v Blizzard Entertainment, 629 F 3d 928 (2010) ............................... 11

5. MGE UPS Sys, Inc v GE Consumer & Indus, Inc No. 08-10521 (5th Cir. July 20,
2010) ............................................................................................................................ 15

6. Real Networks, Inc v Streambox Inc, US Dist LEXIS 1889 (2000) ........................... 11

7. Sony Computer Entertainment Europe Ltd v Harmeet Singh and others, CS(OS)
1725/2012. ................................................................................................................... 14

8. Universal City Studios, Inc v Corley, 273 F 3d 429 (2001) ........................................ 11

Statutes

9. Digital Millennium Copyright Act (DCMA .................................................................. 9

10. the Copyright (Amendment) Act’ (2012) .................................................................... 13

Treatises

11. WIPO Copyright Treaty (WCT), Geneva ...................................................................... 8

12. WIPO PERFORMANCES AND PHONOGRAMS TREATY ..................................... 8

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INTRODUCTION
Copyright Law encourages the creation of works of authorship by granting exclusive rights for
a limited period of time. It operates on the principle of ‘Quid Pro Quo’, which means ‘give and
take’. An author gives a creative work to the society and takes exclusive rights over it for a
limited period of time, after the expiration of which the work falls into the public domain. The
rationale behind providing copyright protection is both moral and economic. The moral
rationale is that the author gets rights over his creations which form a part of his persona and
the economic rationale is that the copyright law encourages authors to produce new works by
providing exclusive rights for commercial exploitation.

A Copyright would be granted for an original work of authorship expressed in a tangible

medium. The work created might be musical, artistic, dramatic, motion picture, sound
recording, etc. If the work falls into one of the subject matter categories and is expressed in a
tangible medium, the author gets a bundle of exclusive rights, which include the right to
reproduce, distribute, make derivative works, adapt, abridge and so on. The exclusive rights
granted to the author are not unlimited, there are exceptions in the form of fair use, first sale,
compulsory licensing and so on. Through these exceptions, the copyright law tries to balance
the exclusive rights of authors and the rights of the public to use the copyrighted works.

Traditional copyright law was functioning efficiently until the advent of digital media. The
evolution of digital media has broken many barriers to communication and has reduced the
cost of producing new copies to zero. It has allowed copyright owners/authors to develop a
proficient system of commercially exploiting their works. Subject matter that can be
transmitted digitally includes text, software, audio, and video. The rights possessed by
copyright owners on digital media are called digital rights. Such rights are not different from
the traditional rights possessed by a copyright owner.

Though the digital media provides commercial advantages to the copyright owner, those
advantages could be a nullity because easy reproduction and distribution of digital works
increase piracy and uncontrolled proliferation of copyrighted works. In order to prevent piracy
and to track the proliferation of copyrighted works, Digital Rights Management (DRM)
systems such as encryption, watermarking, fingerprinting and so on have evolved. Rather than
tracking illegal uses after they occur, the latest DRM technologies seek to prevent illegal uses
in the first place. New technologies like the Windows Media Rights Manager (WMRM) have
great amenities to protect digital content. WMRM protects digital audio and video content not

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only until files are transferred to the user but also even after they are transferred. Microsoft’s
Palladium is an example of how strong DRM technologies would be in the near future.

Though DRM systems are getting stronger by the day, someone would definitely find a way to
break them and that would result in free distribution of the content without the copyright
owner’s authority. In order to prevent breaking/circumvention of the DRM systems, the support
of law is very essential. To meet this need, laws have been enacted in various nations
prohibiting circumvention of DRM systems designed to protect the digital rights of the
copyright owner. Such laws protect the rights by making circumvention of technological
measures to protect digital content illegally.

Anti-circumvention laws provide strong protection to the copyright owners but they deprive
the public of the rights they have over the copyrighted works. As circumvention would be
illegal, any such measures to make fair use of the work would also be illegal, thus depriving
the public of their right to free use. Therefore, the anti-circumvention laws give rise to a conflict
in this modern era which springs bad consequences. The world is today struggling to find an
amicable solution to this problem. Under such circumstances, this article explores the need for
an anti-circumvention law in India and other developing countries.

The Indian Copyright Law is codified in the form of ‘The Copyright Act, 1957’. The Act is
more than 60 years old has certainly gone through few makeovers and amendments to keep it
in sync with the changing legal scenario in the country as well as the World.

However, the changes brought by ‘The Copyright (Amendment) Act, 2012’ are significant ones
due to several reasons, which we shall see in the later parts. The Amendment Act has introduced
two new provisions in the form of Section 65A and 65B. The provisions provide with Anti-
circumvention provisions in the form and along with Digital Rights Management provisions.
Whether the changing Digital Environment can be held as a reason for the amendment like
other countries is still debatable, because, if this is the actual reason, then it might be said that
it has come a little too late.

However, the objective of harmonizing the Indian Copyright provisions with the provisions of
the WIPO Copyright Treaty and WIPO Performers and phonograms Treaty (WPPT), sounds
much more plausible. Even though India is not a signatory of any of the WIPO Internet Treaties,
the legislature has definitely realized the need for the Indian copyright to be in harmony with
the International provisions to ensure proper Copyright protection to the rights holders in the

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cyberspace, as well as to protect several other economic interests and considerations. Majorly,
the changes are said to be targeted against the ever-rising menace of Piracy, particularly the
Indian Film Industry. Irrespective of the real motive behind such delayed change in the policy,
the changes have been welcomed by the legal community, even though few voices were raised
questioning the need for the changes. However, how complete these provisions are and how
much profound effect they have on the Indian Copyright Law, is yet to be seen. This project is
concerned with the Laws in India regarding Anti-Circumvention of technological protection
measures.1

RESEARCH METHODOLOGY
DATA SOURCES

 The data is purely secondary in nature and the knowledge has been
obtained only through various articles available on various websites,
books and journals.
 There is no scope to collect primary data in any form as the topic is
theoretical in nature and does not include any kind of questionnaire to be
filled.

RESEARCH OBJECTIVES

The objective of this dissertation is

 To study the International perspective on anti – circumventing laws

 To understand the Indian laws in this respective and the scope as well as
the limitations of the same
RESEARCH METHODOLOGY

The research commences by searching for articles related to the topic. Then
having a detailed knowledge of the same. The research methodology applied is
‘Non-Doctrinal’ as well as ‘doctrinal’ one, where all the referred material has

1
International Journal of Intellectual Property Rights (IJIPR), ISSN 0976-6529 (Print), ISSN 0976-6537 (Online),
Volume 6, Issue 1, January - June (2015), pp. 22-31, © IAEME

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been taken from various library resources such as books, articles, journals,
cyberspace, and legal databases, and practical or fieldwork has been done. It will
involve secondary data such as various Acts, Rules and regulations, Judgements,
Articles, Published Reports, Books and Journals.

INTERNATIONAL TREATIES

1. WIPO COPYRIGHT TREATY

WCT is a special agreement within the meaning of Article 20 of the Berne Convention for the
Protection of Literary and Artistic Works. It was adopted with an aim to develop and maintain
the protection of the rights of authors in their literary and artistic works in a manner as effective
and uniform as possible. Article 112 of the WCT provides the obligations of members
concerning technological measures. According to Article 11, the contracting states shall have
an obligation to provide adequate legal protection and effective legal remedies against the
circumvention of effective technological measures that are used by authors in connection with
the exercise of their rights under the WCT or the Berne Convention ant that restrict acts, in
respect of their works, which are not authorized by the authors concerned or permitted by law.

Article 123 of WCT, provides the obligations of member states concerning Rights Management
Information. As per Article 12, the member states shall have the obligation to provide adequate
and effective legal remedies against any person for knowingly inducing, enabling, facilitating
or concealing removal or alteration of any electronic rights management information without
authority and for inducing, enabling, facilitating or concealing distribution, import for
distribution, broadcast or communication to the public, without authority, works or copies of
works knowing that electronic rights management information has been removed or altered
without authority.

2. WIPO PERFORMANCES AND PHONOGRAMS TREATY (WPPT)

WPPT was adopted with an objective to develop and maintain the protection of the rights of
performers and producers of phonograms in a manner as effective and uniform as possible.
This treaty would not disturb the existing obligations that Contracting Parties have to each

2
Article 11, WIPO Copyright Treaty (WCT), Geneva, adopted by the Diplomatic Conference on December 20,
1996
3
Article 12, WIPO Copyright Treaty (WCT), Geneva, adopted by the Diplomatic Conference on December 20,
1996

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other under the International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations done in Rome, October 26, 1961 (Rome
Convention). Articles 184 and 195 of WPPT provide similar obligations for performers and
producers of phonograms to contracting states as provided under Articles 11 and 12 of the
WCT.

Both the treaties obligate the member states to provide for laws prohibiting circumvention of
digital rights management systems. They also obligate them to provide for laws to prevent
trafficking in tools meant for circumvention activities.

DOMESTIC IMPLEMENTATION OF THE TREATIES

After WIPO had finalized the two treaties, many countries including the USA and the members
of the EU implemented them. The USA did so immediately, leading to the enactment of the
Digital Millennium Copyright Act (DMCA) in 1998.6 The EU also took steps to implement the
treaties, passing the Information Society Directive of 2001.7 In 1999, the Japanese government
amended its Copyright Law in order to implement the anti-circumvention requirements of the
WIPO Internet Treaties, going beyond the treaties’ requirements by passing amendments to the
Unfair Competition Prevention Law that prohibit the distribution of devices that circumvent
access control measures.8 China also took initiatives in 2001 to incorporate anti-circumvention

4
Article 18: Obligations concerning Technological Measures: Contracting Parties shall provide adequate legal
protection and effective legal remedies against the circumvention of effective technological measures that are
used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty
and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers
or the producers of phonograms concerned or permitted by law. Article 18, WIPO PERFORMANCES AND
PHONOGRAMS TREATY, adopted by the Diplomatic Conference on December 20, 1996
5
Article 19: Obligations concerning Rights Management Information: (1) Contracting Parties shall provide
adequate and effective legal remedies against any person knowingly performing any of the following acts
knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate
or conceal an infringement of any right covered by this Treaty: (i) to remove or alter any electronic rights
management information without authority; (ii) to distribute, import for distribution, broadcast, communicate or
make available to the public, without authority, performances, copies of fixed performances or phonograms
knowing that electronic rights management information has been removed or altered without authority. Article
19, WIPO PERFORMANCES AND PHONOGRAMS TREATY, adopted by the Diplomatic Conference on
December 20, 1996
6
The TPM provisions of the Digital Millennium Copyright Act (DCMA) are codified at 17 U.S.C. Sections 1201-
1205. The other portions of the DMCA deal with a variety of other intellectual property issues, like limitations on
the liability of online service providers for copyright infringement, new exceptions to copyright, and protection
for the design of vessel hulls. Full text available at http://www.gpo.gov/fdsys/pkg/PLAW-105publ304/pdf/
PLAW-105publ304.pdf (accessed 30 September 2019)
7
Directive 2001/29 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information
Society, OJ J 167 (22/6/2001).
8
M Katoh ‘Anti-Circumvention Measures, License Restrictions, and the Scope of IP Protection: Protection from
Copying or Protection from Competition: Intellectual Property and the Internet: A Japanese Perspective’ (2002)
U Illinois JL Tech & Policy 333, 338

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provisions by virtue of the Copyright Amendment made that year.9 Finally, India amended its
copyright law after a long wait, in 2012, with the benefit of being able to evaluate the laws and
judicial pronouncements of other major jurisdictions and customize its own version in order to
protect the right of the copyright owner without compromising public interest.

EUROPEAN UNION
The European Union Directive on copyright and related rights in the information society was
adopted by the European parliament in the year 2001 with an aim to implement the provisions
of WCT and WPPT10. The Directive mandates the implementation of the WIPO treaties by EU
member states.

The EU directive provides that the member states shall provide adequate legal protection
against the circumvention of any effective technological measures, designed to prevent or
restrict acts not authorized by the rights holders of any copyright11. It further provides that the
member states shall provide adequate legal protection against the manufacture, import,
distribution, sale, rental, advertisement for sale or rental, or possession for commercial
purposes of devices, products or components or the provision of services which are promoted,
advertised or marketed for the purpose of circumvention of, or have only a limited
commercially significant purpose or use other than to circumvent, or are primarily designed,
produced, adapted or performed for the purpose of enabling or facilitating the circumvention
of any effective technological measures12.

The directive further mandates that the member states shall provide for adequate legal
protection against any person for knowingly removing or altering any electronic right
management information and for distributing, importing for distribution, broadcasting,
communicating or making available to the public of works or other subject-matter from which
electronic rights-management information has been removed or altered without authority13.
The member states are required to bring into force the laws, regulations and administrative

9
J Wang ‘Anti-circumvention Rules in the Information Network Environment in the US, UK and China: A
Comparative Study’ (2008) J Int’l Commercial L & Tech 55, 58
10
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the information society. Official Journal L 167, 22/06/2001 P.
0010 – 0019
11
Article 6(1), Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society. Official Journal L 167,
22/06/2001 P. 0010 – 0019
12
Article 6(2), EUCD Journal L 167, 22/06/2001 P. 0010 – 0019
13
Article 7, EUCD Journal L 167, 22/06/2001 P. 0010 – 0019

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provisions necessary to comply with this Directive before 22 December 2002.14 Only Denmark
and Greece met this deadline. UK has made efforts to implement the directive through its 2003
regulations.

UNITED STATES OF AMERICA

The DMCA is the most significant change to U.S. copyright law since its last major revision
in 1976. Its anti-circumvention rules have generated much controversy, and have been viewed
by some as going too far in strengthening the rights of intellectual property owners to control
access and copying. The rules are complex, and they are generally acknowledged to present
many questions as to their meaning and intent. According to one well-known commentator the
DMCA “bursts with conundrums, brain-teasers, and paradoxes.” This article first describes the
rules and their exemptions, and then discusses the implications for software developers and
vendors, researchers, content providers, and users of the Internet.

The Digital Millennium Copyright Act (“DMCA”) makes it illegal to circumvent technical
measures (e.g., encryption, copy protection) that prevent access to copyrighted materials, such
as computer software or media content. The DMCA also bans the distribution of products or
services that are designed to carry out circumvention of technical measures that prevent either
access to or copying of copyrighted materials. As a result of the passage of the DMCA,
copyright owners who implement protective measures such as encryption can greatly enhance
their ability to control the use of their products and to prevent piracy and unauthorized product
dispositions. The DMCA also presents some potential pitfalls for developers of products that
interoperate with other software products and for researchers into encryption and other
technologies that limit access to digital products.

The DMCA’s anti-circumvention provisions have, however, been severely criticized by

leading scholars. According to Samuelson and Scotchmer, the anti-circumvention rules went
further than necessary to accomplish the goal of protecting digital content and might unduly
impinge on fair and other non-infringing uses of digital content, on competition within the
content industry, on competition in the market for technical measures and on encryption and
computer security research.15 Nimmer criticized the manner in which copyright law had
expanded its reach by targeting not only the bad deed but also bad machines and bad services.16

14
Article 13, EUCD Journal L 167, 22/06/2001 P. 0010 – 0019
15
P Samuelson and S Scotchmer ‘The Law and Economics of Reverse Engineering’ (2002) 111 Yale LJ 1575,
1637.
16
D Nimmer ‘A Riff on Fair Use in the Digital Millennium Copyright Act’ (2000) 148 U Pa L Rev 673, 684.

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While Burk was of the view that DMCA had conferred upon content owners a new exclusive
right to control access to not only technologically protected works but also to ancillary
technologies.17 Even though the US courts have interpreted the anti-circumvention provisions
of DMCA through case law from the year 2000 the judiciary was unable to adopt a uniform
standard in matters dealing with circumvention of TPMs.18

INDIAN LAWS ON ANTI - CIRCUMVENTION

Before amending its copyright law to incorporate the anti-circumvention provisions, India was
subjected to considerable pressure by trading partners such as the USA to include the necessary
provisions in its copyright law. In order to build up more pressure, India was routinely
classified under the priority watch list in the Special 301 Report prepared by the US Trade
Representative, which highlighted the failure of Indian copyright law to include provisions on
anti-circumvention.19

India’s legislative journey towards anti-circumvention provisions included numerous

consultations with various stakeholders.20 These stakeholders broadly represented the film
industry, music industry, publishing industry, news broadcasting industry, authors’ guilds,
lyricists, composers, internet service providers, organizations representing visually
handicapped persons, etc.21 It was the task of the Copyright Department to ensure that the anti-
circumvention provisions that were included in the law did not in any way compromise the
public interest in access to works.22

During the consultation process with stakeholders, there was no unanimity of views. The Indian
Broadcasting Federation found the provision quite positive but required more stringent
provisions, such as increasing the imprisonment term from two to three years for first offenders,

17
DL Burk ‘Anti-circumvention Misuse’ (2003) 50 UCLA L Rev 1095,1132
18
In cases such as Real Networks, Inc v Streambox Inc, US Dist LEXIS 1889 (2000); Universal City Studios, Inc
v Corley, 273 F 3d 429 (2001); Davidson & Associates v Jung, 422 F 3d 630 (2005); MDY Industries v Blizzard
Entertainment, 629 F 3d 928 (2010), MGE UPS Sys, Inc v GE Consumer & Indus, Inc, 622 F 3d 361 (2010), the
defendants were held to have circumvented TPMs in breach of the DMCA. Chamberlain Group v Sky link
Technologies, 381 F 3d 1178 (2004); Lexmark Int’l, Inc v Static Control Components, Inc, 387 F 3d 522 (2004),
which decided in favour of the defendants even though they had circumvented the protection measures employed
by the plaintiffs.
19
The ‘Special 301’ Report reviews on a yearly basis the global state of intellectual property rights protection and
enforcement and the same is conducted by the Office of the United States Trade Representative (USTR) under
Special 301 provisions of the Trade Act 1974. Full text of all the Special 301 Reports available at
https://ustr.gov/about-us/policy-offices/ press-office/reports-and-publications (accessed 2 October 2019).
20
Parliamentary Standing Committee on Human Resources Development, 277th Report on the Copyright
Amendment Bill 2010 (20 September 2019). Available at http://www.prsindia.org/uploads/media/Copyright
Act/ SCRCopyright Bill2010.pdf (accessed 20 September 2019) (‘Standing Committee Report’)
21
Ibid, 7 –8 para 1.4
22
Ibid, 55 paras 20.2.

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treating all circumventions as cognizable and non-bailable and shifting the burden of proof to
the infringer.23 The Business Software Alliance wanted Indian law to comply fully with the
WIPO Internet Treaties and thus supported the inclusion of both civil and criminal liability,
whereas Google India wanted the act of unlawful circumvention to be made a civil wrong
punishable by damages but not a criminal offense.24 Yahoo India was of the opinion that
imposing anti-circumvention provisions might result in exceeding the scope of copyright
protection as TPMs have the effect of technologically blocking even legitimate activities which
users are otherwise permitted to do under copyright law Stakeholders representing film
producers and music industry criticized the provisions as they considered them to be
inappropriate and ineffective: they wanted the very act of interfering with TPMs to be an
offense with strict provisions for civil and criminal liabilities.25

The Standing Committee was, however, unmoved, observing that the international obligation
on TPMs imposed by the WIPO Internet Treaties allowed countries to develop laws to prevent
circumvention of TPMs while keeping in mind the public interest of access to works.26 It took
note of the experience of developed countries in framing such laws: these laws were abused by
right holders, resulting in the blocking of research and the inhibition of the development of new
technologies.27

Section 65A of the ICA 1957 reads: 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.28

The wording of the amendment makes it clear that the application of the section is restricted to
rights granted under the ICA 1957. This provision is very similar to the EU Directive as it
protects only materials covered by copyright.29 This would mean that the circumvention of
even the most sophisticated TPM is not illegal if the underlying content is not protected by
provisions of the copyright law,30 indicating that all the limitations and fair dealing provisions

23
Ibid, para 20.3.
24
ibid
25
Ibid, 56 paras 20.5
26
ibid
27
Ibid. See also SP Baruah ‘Disruptive (Technology) Law? Examining TPMs and Anti-Circumvention Laws in
the Copyright (Amendment) Act’ (2012) 5 NUJS L Rev 583, 599.
28
ICA Amendment 2012, above, n 24, s 65(A)(1)
29
In contrast, the US provision prohibits the act of circumventing a technological measure used by copyright
owners to control access to their works
30
EU Directive 2001/29, above, n 14, Art 6(3)

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applicable to works in which copyright subsist shall continue even when TPMs are used.
Another important aspect of this provision is the emphasis given to the intention of the
infringer. In comparison, while US law is not concerned with the intention of the infringer, the
EU Directive, like the Indian law, requires knowledge on the part of the person who is
circumventing a TPM.31

Although the statute uses the term ‘effective technological measure’, it gives neither illustration
nor guidance on the measures that would fall within its ambit. In contrast, EU Directive lists
technologies covered, such as encryption and scrambling, and the corresponding US law
provides some guidance regarding interpretation of the term ‘effective technologies’.32 It
appears that the intention of the Indian lawmakers is to keep the provision on TPM as
technology-neutral as possible, leaving its interpretation to the courts which will decide the
matter by considering all relevant facts and circumstances. The language used in the section
also imposes criminal liability with respect to circumvention of an effective TPM that has been
used for the purpose of protecting any of the rights conferred by the copyright law if the
circumvention is performed with the intention of infringing rights conferred by the ICA 1957.33

In order to balance the interests of rights owners and those of the general public, the law
exempts certain acts from the purview of circumvention.34 These pertain mostly to conducting
encryption research, doing any lawful investigation, testing the security of computer systems
or networks, doing anything intended for identification or surveillance of a user and measures
in the interest of national safety, etc.35 These exemptions bear some similarity to DMCA
provisions on encryption research and national security.36 The law also refers to third parties
that facilitate circumvention and exempts them from liability if they satisfy certain conditions,
such as maintaining records of the persons who sought help with circumvention and the
purpose for which the circumvention was carried out.37

31
DMCA, above, n 13, s 1201(a)(1)(A): “No person shall circumvent a technological measure that effectively
controls access to a work protected under this title.” See also EU Directive 2001/29, above, n 14, Art 6(1).
32
EU Directive 2001/29, above, n 14, Art 6(3); DMCA, above, n 13, s 1201(a) (3)(B): “a technological measure
“effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the
application of information, or a process or a treatment, with the authority of the copyright owner, to gain access
to the work.”
33
ICA Amendment 2012, above, n 24, s 65A
34
ibid
35
ibid
36
DMCA above, n 28, s 1201(e) – (g)
37
ICA Amendment 2012, above, n 24. s 65A(2)(a) (proviso)

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Before India amended its law to include the anti-circumvention provisions there was a general
feeling that the US regime on the topic was stringent: since it might not be suited to India, the
country should not blindly follow DMCA provisions.38 India finally amended its law and
adopted a minimalistic—as compared to the USA— approach and, in the process, did not
follow the US model even though the USA had over a decade of experience in handling TPM-
related disputes and its resolution.

In the case of, Sony Computer Entertainment Europe Ltd v Harmeet Singh and others,39 the
Delhi High Court dealt with a matter involving, g circumvention of a TPM employed in a video
game consoles manufactured by Sony. The defendants were selling Sony home entertainment
systems by systematically unlocking the TPM and modifying the original Sony equipment so
that it could work with pirated software supplied by them. This was done using software known
as Jailbreak that circumvented encrypted codes and facilitated the use of Sony machines for
uploading pirated games sold by the defendants at an added cost. The court was convinced that
the act of overriding the encrypted code by introducing Jailbreak amounted to circumvention
of TPM employed to protect copyright material, and issued an order in Sony’s favor. The court
restrained the defendants and their associates from doing any of the acts amounting to
infringement of Sony’s copyright. Thus the first Indian case ruled in favor of the copyright
holder even though the anti-circumvention provision was not in operation on the date of passing
the order.

CRITICAL ANALYSIS OF THE INDIAN LAWS

While TPM protection has been incorporated into the copyright laws of major countries for
over 10 years, there is no uniformity with respect to interpretation within them. For example,
case-law emerging from the US presents a confusing scenario as its courts have given
completely divergent opinions in a significant number of important decisions This approach is
highlighted in Chamberlain Group v Skylink Technologies,40 Lexmark Int’l, Inc v Static
Control Components41 and MGE UPS Sys, Inc v GE Consumer & Indus, Inc42 where the courts
have ruled against the TPMs employed by copyright owners, holding that the protection of

38
S Pandit ‘Evolving an Indian Anti-Circumvention Law: Lessons from the United States and Japan’ (2008) 30(6)
EIPR 244, 249.
39
Sony Computer Entertainment Europe Ltd v Harmeet Singh and others, CS(OS) 1725/2012.
40
Chamberlain Group v Skylink Technologies 381 F.3d 1178 (Fed. Cir. 2004)
41
Lexmark Int’l, Inc v Static Control Components 387 F.3d 522
42
MGE UPS Sys, Inc v GE Consumer & Indus, Inc No. 08-10521 (5th Cir. July 20, 2010)

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TPMs under the DMCA was restricted to a copyright owner’s rights, conferred under the law
of copyright only. At the same time one can also observe a completely different approach in
cases like Real Networks,43 Corley44 and Blizzard45 in which the courts gave broad protection
to TPMs employed by copyright owners even though those TPMs had the effect of denying the
fair use provisions granted by copyright law. These decisions send a clear signal that US courts
are facing significant difficulties when applying TPM protection provisions under the
DMCA.46

The EU Directive 2001/29, implemented across various Member States, has also resulted in
diverse interpretations by courts in the EU. In many instances, judgments passed by national
courts in Member States have raised doubt on the legality of TPMs, as illustrated by the
conflicting decisions passed by various lower courts in Italy and the final judgment of the
Italian Supreme Court in Sony Playstation.47 Scholars have criticized this latter decision as it
has the potential of locking up matters not covered by copyright using TPMs.48 By contrast,
CJEU’s approach in the Nintendo case could be interpreted as a flexible approach with respect
to the circumvention of TPMs, as the court held that under certain circumstances it might be
perfectly lawful to circumvent a TPM.49 All the aforementioned decisions involving similar
subject matter raise serious questions relating to the interpretation of crucial provisions.

CONCLUSION
The evolution of copyright has been closely linked to technological development. Just as the
concept of ‘crime’ has existed since the inception of the concept of ‘society’, in a similar way,
the right of ‘copyright’ has been followed by the concept of ‘infringement’ of the right, since
its inception. However, Technological advancement since the advent of Internet, aka
Cyberspace, has changed the dynamics of the relationship between Copyright and its
infringement in a fundamental way. The extrinsic nature of the cyberspace has altered the vital
concepts of copyright as a subject matter.

43
Real Networks, Inc v Streambox Inc, US Dist LEXIS 1889 (2000)
44
Universal City Studios, Inc v Corley, 273 F 3d 429 (2001)
45
MDY Industries v Blizzard Entertainment, 629 F 3d 928 (2010)
46
S Sourifman ‘Legal Lock-Picking: An Analysis of Anti-Circumvention Law in the United States and Brazil’
(2012) Cardozo J Int’l & Comp L 911, 931.
47
E Arezzo ‘Video Games and Consoles between Copyright and Technical Protection Measures’ (2009) 40(1)
IIC 85, 90.
48
ibid
49
Nintendo case above, n 23. See also H Newton et al ‘CJEU Increases Burden on Manufacturers of Games
Consoles to Prove the Unlawfulness of devices Circumventing Technological Protection Measures and That Their
TPMs are Proportionate’ (2014) 9(6) JIPLP 456

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 Intellectual Property Rights

The ease, with which the internet facilitated the infringement of copyright, had many scholars
wondering whether the ‘Copyright’ as a right will cease to exist someday. The difficulty in
protecting the copyrights in works has proved to be a great concern, especially considering the
share of copyright in the national as well as international economies. However, a united effort
at the international level has stood up against the digital annihilation of copyright. And out of
that effort, there have been some remarkable efforts from individual Nations to try and
formulate Laws that strike a balance between the advancement of technologies and the integrity
of Copyright.

The individual right holders have indeed taken the initiative on themselves and applied the
Technological protection measures to protect their rights. The individual Governments have
also come forward to shield such efforts in forms of legislation. However, one thing needs to
be understood is that the rights of the content owners do not in any manner superimpose the
rights of the users and the general public. There needs to be a balance between both. To achieve
this task, it is important to target such anti-circumvention provisions at the more
technologically sound people, who have the expertise and potential to circumvent such
technological protection measures. Also, the provisions need more sharpness towards
Manufacturers and distributors of such circumvention devices. This is important because the
majority of ordinary users do not possess such technical expertise to circumvent most of the
technological protection measures. The strict implementation of such protection measures
ultimately causes inconvenience to the majority of ordinary users and the real culprits get away
somehow.

The Indian Copyright Law had been adamant to the technological changes all around the globe,
and yes it was indeed getting plundered by the evils of Piracy. However, the recent changes in
the law discussed above have indeed provided the legislature with a new outlook and
perspective. Even though several scholars and activists have argued that India at this stage does
not need any such legislation, keeping eyes closed towards the copyright violations on the
cyberspace and not making efforts to remove such disparity will not do any good.

Therefore, in the light of the above argument, the effort of the Indian Legislature towards
introducing new provisions complying with the international standards and keeping Indian law
in sync with the technological advancements is definitely appreciable. The losses suffered by
the Indian economy due to acts of piracy are all-time high and this effort seems to be directed
towards fixing that only.

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