Press Laws and Ethics

Topic: Copyright Act, 1957
Submitted by: Manali Shah – 07 Submitted to: Mr Narendra Vispute

TY BMM, V.G. Vaze College of Arts, Science & Commerce

Introduction: What is copyright? Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work. Why should copyright be protected? Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create. Copyright Act, 1957: The Copyright Act, 1957 came into effect from January 1958. This Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994 and 1999, with the amendment of 1994 being the most substantial. Prior to the Act of 1957, the Law of Copyrights in the country was governed by the Copyright Act of 1914. This Act was essentially the extension of the British Copyright Act, 1911 to India. The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright protection for ideas, procedures, methods of operation or mathematical concepts as such. Copyright does not ordinarily protect titles by themselves or names, short word combinations, slogans, short phrases, methods, plots or factual information. Copyright does not protect ideas or concepts. To get the protection of copyright a work must be original. Acquisition of copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright. How to file application for registration of a copyright for a work?

Three copies of published work may be sent along with the application. while the other will be retained. 1958.30. Kasturba Gandhi Marg. New Delhi. provided the works still enjoy copyright. On-line registration through “E-filing facility “ has been provided from 8th September 2009. Both published and unpublished works can be registered.e.M. can also be registered. one copy of the same duly stamped will be returned. to 4. If the work to be registered is unpublished. The applications are also accepted by post. Copyright in works published before 21st January. c) Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules . as far as possible. a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. P. . which facilitates the applicants to file applications at the time and place chosen by them.30 P. and d) The applications should be signed by the applicant or the advocate in whose favor a Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed. i. b) Separate applications should be made for registration of each work. 1957? Any individual who is an author or rights owner or assignee or legal heir can file application for copyright of a work either at the copyright office or by post or by e-filing facility from the copyright Office web-site www.3.R. The applications for registration of works can be filled at the counter provided at the Copyright Office from 2.. 1957 came in force. Each and every column of the Statement of Particulars and Statement of Further Particulars should be replied specifically.110 003. C. the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with prescribed fee. It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office. In case two copies of the manuscript are sent.copyright. before the Copyright The procedure for registration is as follows: a) Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules.2/W. Whether unpublished works are registered? Yes. When a work has been registered as unpublished and subsequently it is published. from Monday to Friday.The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights and is located at B.M. in the Copyright Office for record and will be kept confidential. What is the procedure for registration of a work under the Copyright Act.

a separate application has to be filed for registration of all these work . As per Section 2 (o) of the Copyright Act. artistic works (photographs etc.). 1957 “literary work” includes computer programmes.The process of registration and fee for registration of copyright is same. sound recordings. Computer Software or programme can be registered as a ‘literary work’. Whether computer Software or Computer Programme can be registered? Yes. including computer databases. Therefore. cinematograph films and broadcastings and computer software too. tables and compilations. A web-site contains several works such as literary works. video clips. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.

was constituted in September 1958. . The Board is entrusted with the task of adjudication of disputes pertaining to copyright registration. The jurisdiction of the Copyright Board extends to the whole of India. unpublished Indian works. It also hears cases in other miscellaneous matters instituted before it under the Copyright Act. creators and owners of intellectual property including IP attorney’s near their place of location or occupation. Raghbir Singh for a period of five years with effect from 5thApril. The meetings of the Board are held in five different zones of the country. 1957.Copyright Board The Copyright Board. The Copyright Board was reconstituted under the Chairmanship of Dr. production and publication of translations and works for certain specified purposes. a quasi-judicial body. 2006 till the year 2011. This facilitates administration of justice to authors. assignment of copyright. grant of Licenses in respect of works withheld from public.

Ordinarily. the copyright societies are able to have reciprocal agreements with similar societies in other countries for collecting royalties for the uses of Indian works in those countries. Functions of a copyright society: Conditions subject to which a copyright society may issue licences. because of its organisational facilities and strength. 1957. collect fees and distribute such fees. (1) A copyright society may issue licences and collect fees in accordance with its Scheme of Tariff in relation to only such works as it has been authorised to administer in writing by the owners of rights and for the period for which it has been so authorised.COPYRIGHT SOCIETIES Collective administration of copyright by societies is a concept where management and protection of copyright in works are undertook by a society of owners of such works. A copyright society is a registered collective administration society under Section 33 of the Copyright Act. A copyright society can issue or grant licences in respect of any work in which copyright subsists or in respect of any other right given by the Copyright Act. Because of the country’s membership in international conventions. From this it can automatically be inferred that it will be in the interests of copyright owners to join a collective administration organisation to ensure better protection to the copyright in their works and for reaping optimum economic benefits from their creations. Users of different types of works also find it easy to obtain licences for legal exploitation of the works in question. (2) The distribution of fees collected shall be subject to a deduction not exceeding fifteen per cent of the collection on account of administrative expenses incurred by the copyright society . Such a society is formed by copyright owners. that society. Obviously no owner of copyright in any work can keep track of all the uses others make of his work. The minimum membership required for registration of a society is seven. When he becomes a member of a national copyright society. only one society is registered to do business in respect of the same class of work. is able to keep a better vigil over the uses made of that work throughout the country and collect due royalties from the users of those works. though the collective administrative society.

representatives of Phonographic Performance Limited. New Delhi. Director General Of Police. Ministry of Human Resource Development and Joint Secretary in charge of Book Promotion and Copyright Division is the Ex-Officio Chairman and Vice Chairman of the CEAC respectively.2006. Jammu & Kashmir. representatives of National Association of Software Service Companies. it was decided to constitute the following three sub-committees for the following purposes: (i) (ii) (iii) Awareness Building Issues relating to enforcement and shared experiences of the police officers Mechanism to ensure that benefits of enforcement flow back to creators and the right holders Special Cells for Copyright Enforcement The States and Union Territories of Assam. Government of Andhra Pradesh.2007 . Government of Punjab. West Bengal. Government of Uttar Pradesh. Department of Higher Education. and representatives of Federation of the Indian Publishers. Haryana. Goa. The composition of the CEAC comprises Director General Of Police. representatives of Indian Performing Right Society Limited and representatives of Cine Artistes Association. Director General Of Police. Andaman & Nicobar Islands. Government of Uttar Pradesh. Meghalaya. Karnataka. Director General Of Police. Maharashtra. Kerala. The term of the CEAC is THREE years. Director General Of Police. The CEAC is reconstituted periodically after expiry of the term. 1991 a Copyright Enforcement Advisory Council (CEAC) to review the progress of enforcement of Copyright Act periodically and to advise the Government regarding measures for improving the enforcement of the Act. Orissa. representatives of Authors Guild of India. etc. Gujarat. 2005 for a period of THREE years. The current CEAC has been reconstituted on 22nd February. representatives of the Federation of Publishers and Booksellers Associations in India. Government of Gujarat. In the meeting in December. Rajasthan. Tamil Nadu. The CEAC keep holding its meetings regularly. Sikkim. Madhya Pradesh. Government of Uttar Pradesh. representatives of Film Federation of India. Dadra & Nagar Haveli and Daman & Diu have either set up copyright enforcement cells or special cells in the Crime Branch to look after copyright offence cases. Director General Of Police. Chandigarh. Recently held meetings are in the month of June. December 2006 and October. . The Secretary.Copyright Enforcement Advisory Council (CEAC) The Government has set up on November 6.

the author enjoys in addition to the aforesaid rights. and to make any translation or adaptation of the work. reverse engineering of the same). In the case of computer program. the rights available to an author include the right to reproduce the work in any material form. in respect of literary. to perform the work in public or communicating it to the public. to make any cinematograph film or sound recording in respect of the work. sculpture. any copy of the film. to issue copies of the work to the public. The authors of copyright in the aforesaid works enjoy economic rights u/s 14 of the Act. the author enjoys the right to make a copy of the film including a photograph of any image forming part thereof. shall be entitled to have a right to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand. These rights are similarly available to the author of sound recording. It confers copyright protection in the following two forms: (A) Economic rights of the author The copyright subsists in original literary. It must be noted that failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section. mutilation or other alterations of his work. to include the work in any cinematograph work. These are: (i) (ii) Right of paternity Right of integrity. In the case of cinematograph film. dramatic and musical. or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions. Right of integrity empowers the author to prevent distortion. the author of a painting.e. which would be prejudicial to his honour or reputation. to reproduce the work in any material form including the storing of it in any medium by electronic means. The legal representatives of the author may exercise the rights conferred upon an author of a work by section 57(1). The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. dramatic. In the case of an artistic work. and to make any adaptation of the work. other than the right to claim authorship of the work. In addition to the aforesaid rights. other than computer program. 1957 provides copyright protection in India.Indian perspective on copyright protection The Copyright Act. if he was the first owner of the copyright. The rights are mainly. . and to communicate the film to the public. dramatic or musical work. including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work. to communicate or issues copies of the work to the public. cinematographs films and sound recordings. The proviso to section 57(1) provides that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which section 52 (1)(aa) applies (i. to sell or give on hire or offer for sale or hire. drawing or of a manuscript of a literary. or any other action in relation to said work. musical and artistic works. the right to sell or give on hire. (B) Moral Rights: Section 57 of the Act defines the two basic “moral rights” of an author.

The Delhi high Court held that it was not necessary to show that the business being carried on by the plaintiff in Delhi should necessarily be in respect of footwear and articles of clothing as well. The orders and judgments of the court are in the public domain and anyone can publish them. the reproduction or publication of any judgment or order of a court. the plaintiff. tribunal or other judicial authority shall not constitute infringement of copyright of the government in these works. the question involved was whether there is any copyright in the reporting of the judgment of a court. reproduction of a judgment of the court is an exception to the infringement of the Copyright. (2) Jurisdictional aspect: The question of territorial jurisdiction of the court to deal with copyright infringement was considered by the courts on several occasions. The Delhi High court observed: “It is not denied that under section 2(k) of the Copyright Act. Changes consisting of elimination. Not only that being a Government work. However. The legislature in its wisdom introduced this provision laying down absolutely opposite norm than the one set out in section 20 CPC. the Delhi High Court held that where the carton was designed for valuable consideration by a person in the course of his employment for and on behalf of the plaintiff and the defendant had led no evidence in his favour. a work which is made or published under the direction or control of any Court. Under section 52(q). In Caterpillar Inc v Kailash Nichani. In Lachhman Das Behari Lal v Padam Trading Co. No one can claim copyright in these judgments and orders of the court merely on the ground that he had first published them in his book. tribunal or other judicial authority in India is a Government work. It is sufficient if the business was being carried on by the plaintiff in Delhi and further that there was an infringement of plaintiff’s copyright in respect of certain goods. In Godrej Soaps (P) Ltd v Dora Cosmetics Co. The court further held that section 62 of the Copyright Act makes an obvious and significant departure from the norm that the choice of jurisdiction should primarily be governed by the convenience of the defendant. the suit filed by it in the Delhi courts is maintainable and is not liable . no copyright exists in these orders and judgments. elimination or addition of quotations and corrections of typographical mistakes are trivial and hence no copyright exists therein”.Desai. The court further observed: “In terms of section 52(1)(q) of the Act. was carrying on business in several places in India including Delhi. a foreign company. It is thus clear that it is open to everybody to reproduce and publish the government work including the judgment/ order of a court. The plaintiff claimed the relief of ad-interim injunction for preventing infringement of its copyright by the defendant. which were being sold by the defendant in Delhi. the plaintiff is the assignee and the legal owner of copyright in the carton including the logo. in case. careful study and comparison and with the exercise of taste and judgment has made certain comments about judgment or has written a commentary thereon. changes of spelling. a person by extensive reading. may be such a comment and commentary is entitled to protection under the Copyright Act”. the Delhi High Court observed that the plaintiff being a firm functioning at Delhi. through its Indian distributors and collaborators. The purpose is to expose the transgressor with inconvenience rather than compelling the sufferer to chase after the former.CASES OF COPYRIGHT INFRINGEMENT: In Eastern Book company v Navin J. though the defendant was dealing in different goods.

P. 1963 and section 50 of the Copyright Act. In David Pon Pandian v State. as a result of which material evidence may disappear and also to prevent abuse of the process of Court by filing vexatious and belated prosecutions long after the date of the offence. The taking of cognizance by the court depends upon the limitation period as mentioned in the Limitation Act. 1973. 1957. It prescribes an additional ground for attracting the jurisdiction of a court over and above the “normal” grounds as laid down in Section 20 of the C. It is an order by which an application under Section 50 of the Copyright act is entertained and the Copyright Board will decide the same on . At the most it can be returned for presentation to the proper court.C in putting a bar of limitation on the prosecution was clearly to prevent the parties from filing cases after a long time. The Court further observed that the plea regarding want of territorial jurisdiction is not covered by Order7 rule 11 of CPC.C and in computing the period of limitation. the Supreme Court finally settled the position in this regard. The Court observed: “Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding or where there are more than one such persons. observed: “ The Court can take cognizance of the offence if the charge sheet is filed within the period of limitation prescribed under Section 468 of the Cr. The Court observed: “ The order passed by the by the Copyright Board is an order whereby it is held that the provisions of Article 137 of the Limitation Act are not applicable and the board has also held that the Copyright Board is a Tribunal and quasi-judicial authority for all other purposes except for the purposes which are specifically provided in the Copyright Act. (3) Cognizance taken by the court: To prevent copyright infringement. the Gujarat High Court explained the inter-relationship between Article 137 of the Limitation Act. It is. 1963 and Cr. of utmost importance that any prosecution.P.C. the plaint cannot be rejected. The be rejected under Order 7 Rule 11 of the CPC as prayed. therefore.P. the Court has no power to entertain the complaint” The court referred the decision of the Supreme Court in State of Punjab v Sarwan Singh in which it was observed: “The object of Cr. it is evident not only from the cause title but also from the body of the plaint that the Appellant No 2 carries on business within the jurisdiction of the Delhi High Court. which the statute seeks to sub-serve.C. Even if the jurisdiction of the Court were restricted in the manner construed by the Division Bench.P. must abide by the letter of the law or to take the risk of the prosecution failing on the ground of limitation” In Shree Devendra Somabhai Naik v Accurate Transheet Pvt Ltd. the date of commission of the offence is to be reckoned as the starting point. the Madras High Court. timely cognizance taking by the appropriate court is absolutely essential. If the charge sheet is not filled so. The Appellant No 2 certainly “a person instituting the suit”. infringement of which was claimed in the suit. The appellant No 2 may not be entitled to the relief claimed in the suit but that is no reason for holding that it was not a person who had instituted the suit within the meaning of Section 62(2) of the Act”. is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. while dealing with section 68A of the Copyright Act. any of them actually and voluntarily resides or carries on business or presently works for gain. In Exphar SA & Anr v Eupharma Laboratories Ltd & Anr. The court observed that even if it is held that this court has not the territorial jurisdiction. whether by State or a private complainant. The Division Bench went beyond the express words of the statute and negatived the jurisdiction of the Court because it found that the Appellant No 2 had not claimed ownership of the copyright.

But the petitioners did not complain that any stage nor did they seek action from other functionaries of the State. Anand v M/S Delux Films where the Court observed: “Where the same idea is being developed in a different manner. Bulandshahr &Ashok Prakashan (Regd) the Allahabad High Court held that if the petitioner publishes a book by adding any word before or after the book “Bal Bharati”. The Copyright Board does not believe the delay alleged by the present appellant.The approach of the Indian Judiciary in this regard is very satisfactory. the Copyright Board in its wisdom. In Ushodaya Enterprises Ltd v T. that may not come to the aid of the defendant as the case of the plaintiff is that it owns a copyright of the artistic work under the Copyright Act and no registration is required for the same.V. it would amount to copyright violation and the defendant’s copyright is liable to be expunged from the register of copyright.merits. overruling the contention that the application was barred by limitation.G. it is manifest that the source being common. (4) Infringement of copyright: A copyright owner cannot enjoy his rights unless infringement of the same is stringently dealt with by the Courts . should not be allowed to be affected by the dishonest user of the same by another”. It is a discretionary order”. similarities are bound to occur. In other words. then Courts can resolutely decline to step in aid of this party because honesty of action is the crux of the matter and Courts protection is extended only on the principle that damage to a party who has acquired goodwill or reputation in certain trading style for making his goods. Entertaining an application is a matter of discretion. The Board referred the decision of Prem Singh v Cec Industries wherein it was observed: “ In a case where the first party himself is shown to have adopted or imitated a trademark and copyright of a third party. prayed for the writ of “Mandamus” without first exhausting the alternative remedy available under the Copyright Act. The Board further referred the decision of the apex court in R. The Division Bench of the Madhya Pradesh High Court Observed: “ There is no dispute in the submission that it is the duty of police to be watchful in the area and detect crime and punish the criminal in accordance with law. In Khajanchi Film Exchange v state of MP the appellants apprehending the violation of their copyright in the film. decided to entertain the application. In the present case. In Hindustan Pencils Ltd v Alpna Cottage Industries the Copyright Board of Goa held that where the similarities between the artistic works of the parties are fundamental and substantial in material aspects. The writ petition was filed 16 days before .judge. In Prakashak Puneet Prashant Prakashan v Distt. Venugopal the division bench of the Andhara Pradesh High Court held that even though the defendant has registered the carton under the Trademark Act. the Courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work with some variations here and here. he infringes the copyright of the respondent. They ask for mandamus without putting the grievance before the respondent and seeking their reaction. in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of the act of piracy”. In such a case. Thus the court held that the plaintiff was justified in alleging infringement of his artistic work.

petition was filed on mere apprehension that appellants would be deprived of their rights which did not exist when claim for mandamus was made. or omission takes place which had not happened in this case”. Therefore. In Jolen Inc v Shoban Lal Jain the Madras High Court held that latches and acquiescence is a good defence to an action for copyright infringement. Therefore. moving the court was premature and unsustainable. unless the demand was put across and reaction awaited for some time. . to approach the authorities/ police and later to the respondents giving their reaction to the grievance and how it was ready to deal with the matter.the release of the film. Mandamus can be granted only when default. Enough time appellants had. commission. The court held that the plaintiff having allowed the defendant to carry on the business under the trade name of the plaintiff for 7 years is prima facie guilty of acquiescence and it cannot claim for relief of injunction against the defendant as the balance of convenience is in favour of him.

The guilty intention of the offender can be taken into account for determining the quantum of damages to be awarded for the alleged infringement. Thus. The requirements to establish a case of copyright infringement under this theory are: (1) Ownership of a valid copyright. a person who innocently or even accidentally infringes a copyright may be held liable under the Copyright Act of the U. The first relational line involves the employer/employee relationship.Copyright Infringement: Direct Infringement: Direct infringement is a strict liability offence and guilty intention is not essential to fix criminal liability. where it was temporarily stored before being copied onto Netcom’s computer and other Usenet computers. or materially contributed to another person’s infringing activity. He first transferred the information to a BBS computer. and under the laws of various other countries. and (2) That the defendant induced. whereas the second involves the lessor/lessee relationship.S. Once the information was on . (2) Bulletin Board Services Operators (BBSO). the plaintiff has to prove: (1) That the defendant knew or should have known of the infringing activity. and (4) Private users. Thus. (1) Internet Service Providers (ISPs): An ISP most often provides Internet access and he may be held liable for copyright infringement. and (2) Copying or infringement of the copyrighted work by the defendant. and (2) Derived a direct financial benefit from the infringing activity. To claim damages for infringement of the copyright. Contributory infringement: The contributory infringement pre-supposes the existence of knowledge and participation by the alleged contributory infringer. In Religious Technology Center v Netcom On-Line Communication Services. These cyberspace players can be grouped under the following headings: (1) Internet Service Providers (ISPs). a plaintiff must show that the defendant: (1) Had the right and ability to control the direct infringer’s actions. To succeed on a claim of vicarious liability for a direct infringer’s action. Inc a former minister uploaded some of the copyrighted work of the Church of Scientology to the Internet. Internet and copyright infringement theories: The advent of information technology has made it difficult to apply the traditional theories to various cyberspace entities and organizations. vicarious liability focuses not on the knowledge and participation but on the relationship between the direct infringer and the defendant. Legal precedent for vicarious copyright infringement liability has developed along two general relational lines. (3) Commercial Web Page owner/operators. Vicarious Infringement: Vicarious copyright infringement liability evolved from the principle of respondent superior. caused.

the nature of the copyrighted games was creative rather than informative and the entire copyrighted works were copied. he has violated the distribution right. Thus. found the BBS operator contributory liable. however. though Frena himself never placed infringing material on the BBS and despite his arguments that he was unaware of the infringement. Thus. the BBS operator admitted that he had knowledge of the uploading and downloading activity. The court then analyzed whether Netcom was vicariously liable. The evidence clearly showed that the BBS operator knew that subscribers were uploading unauthorized copies of Sega’s video games to and downloaded from his BBS. and was not liable for vicarious infringement.In this case. (3) Commercial Web sites: The Web Page owners must be cautious of the things they post on their Web Pages so that they do not violate the stringent provisions of the copyright laws. The court held that Frena had violated Playboy’s exclusive distribution right and their exclusive display right. The court relied upon the strict liability theory and held that neither intent nor knowledge is an essential element of infringement. The plaintiffs informed Netcom about the infringing activity. could be liable for contributory infringement if plaintiffs proved the knowledge element. The court then analyzed the third party liability theories of contributory and vicarious infringement. The court rejected the BBS operator’s asserted fair use defense since their activities were clearly commercial in nature. The court concluded that Frena was liable for direct infringement. Since Netcom did not violate plaintiff’s exclusive copying. uploaded. A Web Page owner cannot successfully plead and prove that they were unaware about the copyrighted material because copyright notices are prominently given in authorized software. Regarding the knowledge element. The first case in this category was Playboy Enterprises. and downloaded.Netcom’s computer. Further. The court held that Netcom would be liable for contributory infringement if plaintiffs proved that Netcom had knowledge of the infringing activity. Inc v Frena. once again the court found that a genuine issue of material fact supporting Netcom’s right and ability to control the uploader’s acts existed. and download material. upload. and kicking the subscriber off the Internet meant kicking off the rest of the BBS operator’s subscribers. plaintiffs sought a remedy against Netcom for infringement under all three theories –direct. Because Frena supplied a product containing unauthorized copies of copyrighted work. Netcom refused to deny the subscriber’s access because it was not possible to prescreen the subscriber’s uploads. because Frena publicly displayed Playboy’s copyrighted photographs to subscribers. distribution. (2) Bulletin Board Services: The BBSs are more vulnerable to copyright infringement litigations than the ISPs because they can operate independent of the World Wide Web. The court held that since the BBS operators only knew and encouraged uploading and downloading. but did not himself upload or download any files. and vicarious. Here. it was available to Netcom’s subscribers and Usenet neighbors for downloading for up to eleven days. The court. the court found that the Netcom was not liable for direct infringement. he violated the display right. nonetheless. the defendant operated a subscription BBS that allowed the subscribers to view. This copying had adversely affected the Sega’s sale. Moreover. The court found that Netcom did not receive direct financial benefit from the infringement. The court first analyzed whether Netcom directly infringed plaintiff’s copyright. or display rights. he was not liable for direct infringement. contributory. Netcom was held not liable for direct infringement. In Sega v Maphia the BBS was providing services to numerous subscribers who upload and downloaded files to and from the BBS. They also have the controlling power .

(4) Private Users: A computer user who uploads copyrighted material to the Internet is liable for direct infringement. an Internet user should not post copyrighted material on the Internet in a casual manner. Thus. This liability could be avoided only if he can prove the fair use doctrine. The owner are usually the parties that actually perform the uploads to their pages. .over the content of their pages.

These statutes have tried to solve the problem by adopting either of the two approaches. trademark law. Singapore and the United States of America. information technology law or copyright law. Worldwide many nations have tried to define the liability of ISPs in disseminating third party content. 1957 was obviously drafted in complete oblivion of the phenomenon called the Internet. to make ISPs liable could stifle the growth of the Internet. For the content community. for example. copyright law. However. under non-horizontal approach the potential liability of ISPs is determined under each law where it might arise. should be granted some limitation from liability with regard to copyright infringement. ISPs are passive carriers similar to telecommunications companies and. Whereas. In this case various statutes would determine ISP liability. it is practical to sue the ISPs as they are in a position of policing the Internet. etc. unfair competition law. On the other side of the argument. therefore. without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work. Japan. when any person. Ireland. ISP liability under the Copyright Act. trade secret law. Should ISPs be held responsible for illegal activities committed by their users? To what extent are online intermediaries responsible for third party material put on the Internet by users of their facilities? Because of the inherent difficulties of enforcing copyrights against individual Internet users worldwide. the copyright owners have found the answer to this problem is placing legal liability for copyright infringement on those who allow and enable Internet copyright pirates to exist.Liability of Internet service providers for copyright infringement The issue of on-line copyright infringement liability for ISPs has been around since the use of the Internet started to expand rapidly in the early 1990’s and has been the subject of extensive debates worldwide. There are laws now in force in Germany. adopting non-horizontal approach the copyright statute would address ISP liability that might arise only in relation to copyright violations. horizontal approach and non-horizontal approach. Even after its amendments in 1994 and 1999 it does not contain any express provision for determining or limiting ISP liability. etc.) . Sweden. As per section 51 (a)(ii) of the Copyright Act: Copyright in a work shall be deemed to be infringed. It fixes the liability regardless of the grounds for illegality of the transmitted material. (emphasis added. namely the Internet service providers (ISPs). unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright. 1957 The Copyright Act. such as criminal law. which approach the issue from a horizontal perspective. some provisions in the Act could be interpreted to have some bearing on the liability of ISPs. Many of these national laws relate to criminal law. In addition. The horizontal approach covers not only copyright infringement but also all other potential areas of law where liability of ISPs might arise. The liability of ISPs may arise in a variety of legal fields. Non horizontal approach has been adopted by some countries such as Hungary. tort law.

2000 where an Internet Service Provider is referred to as Network service provider and Explanation (a) to s. it is hereby declared that no person providing any service as a network service provider shall be liable under this Act. ‘Can an ISP be said to have abetted the infringement of copyright’ is a question to be decided by the courts in the light of actual facts. The computer servers and other telecommunication facilities are actually located at their business premises and hence they would verily come under the expression “any place” and could be held liable for the infringing activities of third parties whose material they store or transmit if other requirements are fulfilled. 1957. ISP liability under the Information Technology Act. Further. the expression “permits for profit” means that to be held liable the activities of ISP should be for profit meaning thereby that he should be financially benefiting out of the infringing activities. Further the Act contains in section 79 a clause which limits the liability of ISPs under certain circumstances: Network service providers not to be liable in certain cases.ISPs allow their servers and other telecommunication facilities for storing user’s material and for transmitting that material.. So. 2000 In India the provisions relating to the ISPs are specifically legislated in the IT Act. The expression ‘Network service providers’ used in section 79 subsumes within it all kinds of Internet service providers irrespective of . The expression ‘unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright’ is significant in the sense that ISPs are liable only if they have knowledge of the infringing material stored or passing through their servers. the above two requirements are fulfilled by ISPs for most of their activities in case they transmit or store infringing material. 79 defines it as: “Network service provider” means an intermediary. e. Intermediary again has been defined under section 2(w) as: “intermediary” with respect to any particular electronic message means any person who on behalf of another person receives. Further. For the removal of doubts. ISPs normally charge for their services and even if they offer some services for free. rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.g. they could indirectly be making profit out of it. from advertisements that they bundle together with the transmitted material. 63 of Copyright Act. 2000 Under IT Act. 2000 no classification of ISP has been attempted. stores or transmits that message or provides any service with respect to that message. Classification of ISPs under the IT Act. “any person who knowingly infringes or abets the infringement of copyright” is made criminally liable under S.

2000 does not attempt the former but just seeks to create a filtering mechanism for determining the liability of ISPs. it only talks about limiting their liability. In this context. The idea is that the liability of an ISP for his action or omission be first determined in accordance with the statute under which it arises and then if at all the ISP is held liable.what function they perform in the long chain of intermediaries that transport Internet content to the desired destinations. This could not be the motive behind drafting section 79 especially when the Act does not attempt to define the liability of ISPs in any of its provisions. the expression “under this Act” which has been used in section 79 has created some confusion. The liability of ISPs could arise in a number of ways under different statutes. For the removal of doubts it is desirable that the expression “under this Act” be removed from section 79. The liability could be criminal or civil in nature depending on various factors. ISPs may neither initiate the transmission. If the ISP is found liable then his liability again be tested on the touchstone of section 79 of the IT Act. his liability again be filtered through section 79 of the IT Act. Section 79 of the IT Act also provides two circumstances under which an ISP can qualify for exemption from liability: ” Lack of knowledge ” Exercise of due diligence Lack of Knowledge Knowledge of the illegal contents on part of the ISP is a prerequisite for holding him liable under section 79 of the IT Act. then his liability be first determined under section 51(a)(ii) and section 63 of the Copyright Act. Apparently. which could hold ISPs liable. The ISP can escape liability if it could be proved that he was unaware of all that . It is impractical to define the liability of ISPs which could arise in various forms at one place. How can an ISP qualify for exemption from liability for copyright infringement? To qualify for exemption. 2000. In the opinion of the author it is necessary to categorize the ISPs into functional categories otherwise different ISPs could be held liable under the IT Act. which is to limit the liability of ISPs. The ISPs perform different functions in the task of transporting content and their liability cannot be uniform. for which section 79 has been drafted. 2000. it becomes essential to categorize the ISPs. in order to limit their liability. 1957. select the receiver nor have any editorial control by selecting or modifying the material. To give a meaningful disposition to the limitation on liability of ISPs. 2000 for something which they have played no role in or for the contents over which they have little control. For example. Filtering ISP liability through the IT Act The title of section 79 of the IT Act “Network service providers not to be liable in certain cases” makes apparent the object behind the section. if an ISP is accused of illegally distributing pirated copies of music. The latter has not been attempted in any of the Indian legislations including the Copyright Act. this limitation of liability would be applicable only when the liability has arisen under the IT Act alone. The IT Act. Equally impractical could be to amend all our laws. 1957 till now. It has to be based precisely on what function they perform.

the next day someone else might upload the same content. it might encourage them to consciously ‘look away’ and evade all liability. Due diligence For an ISP to escape liability. i. has deeper pockets and is also more capable of paying the damages than is an individual private user. he has to take proper action for removing or disabling that material otherwise he could be said to have knowledge of the infringing material and held liable. It is very easy to trace an ISP. If on a Web site there are 15 subscribers. So with the intent of deterring infringement again. Another reason is that it deters infringement by other subscribers. by and large the action is simultaneously taken against the ISP as well. Let’s presume the Web site actually operates some kind of bulletin board. apart from the person who actually commits the infringement. There are reasons behind ISPs being sued so often when it comes to Internet infringements. Why are ISPs impleaded in cases of copyright infringement on the Internet? Most of the time in every set of action that a copyright owner takes against infringements on the Internet. if we say that the ISPs should not be under an obligation for “due diligence”. But. a duty of care to investigate further whether material he hosts or refers to is unlawful and. If an ISP encounters particularly suspicious circumstances. The provision requires actual knowledge or breach of the duty of care. For example a software product is found loaded on a Web site which anyone is free to download. where found to be so. It is far easier to try and stop the copyright infringement by suing the ISP directly because he controls that network. he may be subject to “due diligence” i. But if he is put under a notice that some infringing material is either stored or passing through his servers. section 79 prescribes “due diligence” to be exercised by him. a site where people just upload and download files and where anyone can contribute as well as can take. . In such situations.was stored and passing through his servers. to block access. So.e.e. all of whom can upload and download content to and from that Web site. often you can trace out the Web site owner but you can’t trace out the actual contributor. It can be safely concluded that ISPs are not liable for the (infringing) gigabytes that are stored and passing through their servers unless they are put on notice. as a business entity. But you definitely can find out the ISP who’s facilities have been used to upload the software. In digital environment products are priced high and much damage can occur in less time. suing an ISP is quite practical. apart from suing the actual offender people would always like to sue the ISP as well. But if you sue the ISP directly it would have to shut off and make it very clear to his subscribers that the infringing content will not be uploaded on this Web site ever again. Normally an ISP. What should be the extent of the “due diligence” requirement? Should the ISPs be required to monitor and judge legality of millions of files that are present or passing through their servers? Considering the gigabyte that are stored or passing through their servers this seems to be an impossible task. if you sue one of them.

all copies of the work. publishers and distributors try to enforce copyright to the best of their abilities. committed. to save their business interests. I must make it clear that despite the variety of cases given in this paper. Two authors can produce two different works from a common source of information each of them arranging that information in his own way and using his own language. Bombay. "The copyright does not protect the idea but it does protect the skill and the labour put in by the authors in producing the work. jumps in to catch the culprit. especially the police.The future of copyright in India: The copyright laws in India are set to be amended with the introduction of the provisions for anticircumvention and Rights Management Information in the Indian copyright regime although India is under no obligation to introduce these changes as it is not a signatory to WCT or WPPT. which came into force on 10 May 1995. there is a major difference. or is likely to be. if he is satisfied that an offence under Section 63 in respect of the infringement of copyright in any work has been. "We had problems of piracy relating to medical textbooks before the law was amended. the police justify their inaction by pointing to murder dockets. wherever found. in the case of a book pirate. be produced before a magistrate. the State deflects the desperate appeals of Copyright owners with nonchalance and the judge sits with a `so what' attitude while the man on the street remains in stark oblivion." Before I conclude. In the case of a bank robbery the newspapers are full of sensational news and the whole might of the State. as soon as practicable. seize without warrant." Section 64 of the Indian Copyright Act 1957 provides that "Any police officer. Since the changes which make copyright violation a cognizable offence it has been possible to use the legal mechanism as a deterrent. . there is not much piracy of books in India. it was necessary to get a court order for search and this meant that there was sufficient notice to the pirate to take defensive action before the court order could be implemented. A person cannot be held liable for infringement of copyright if he has taken only the idea involved in the work and given expression to the idea in his own way. According to Ramdas Bhatkal of Popular Prakashan. especially by up-coming authors. Deprived of the profits from such bestsellers the book industry starved of the much needed capital for growth and investment in literary works of significance but low sales potential. Yet. there is pressure of public opinion even on the judge trying the case." "Copying a book is similar to stealing somebody's jewellery. At that time we found that while the law may be on our side. The effect is electric. wherever found. the situation with regard to copyright enforcement in India has improved. Harsher measures are therefore needed to curb piracy. By and large. Large scale organized copying is like robbing a jeweller's shop or a bank. is being. not below the rank of a sub-inspector. With the amendment of the Copyright Act in 1994. and all copies and plates so seized shall. On the other hand. Therefore we preferred to accept the situation and did nothing. may. The arrangement of the information and the language used should not be copied from a work in which copyright subsists. and all copies and plates used for the purpose of making infringing copies of the work. But then. piracy hurts them hard because the books which get pirated invariably are the few with good margin and high demand.

The situation is. the existing law can be so interpreted that all facets of copyright are adequately covered. specifically touching and dealing with the contemporary issues and problems. To meet the ever. Internet.Another area of copyright infringement which needs to be tightened up relates to protection of author's rights vis-a-vis the assignee or the licensee. not as alarming as it is perceived and the existing legal system can effectively take care of any problems associated with copyright infringement. as posed by the changed circumstances and latest technology. on-line copyright issues are also adequately protected. There is need to develop a model contract. . This can be achieved by applying the “purposive interpretation” technique. Alternatively. however. etc.increasing challenges. 2000 requires a new outlook and orientation. which should also provide protection for the author's rights in the fast changing scenario of electronic publishing. including the copyright. Thus. existing laws should be amended as per the requirements of the situation. too. though not in clear and express term. Conclusion The provisions of the abovementioned two enactments show that the Copyright protection in India is strong and effective enough to take care of the Copyright of the concerned person. Till the country has such a sound and strong legal base for the protection of Intellectual Property Rights. The existing law can also be supplemented with newer ones. the judiciary should play an active role in the protection of these rights. The protection extends not only to the Copyright as understood in the traditional sense but also in its modern aspect. which can be effectively used to meet the challenges posed by the “Intellectual Property Rights” regime in this age of information technology. The Information Technology Act. which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case.

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