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By: Atul S.

Jaybhaye
Assistant Professor
Hidayatullah National Law University
Copyright Law - India
 Concept and Meaning of Copyright:
 Copyright Act 1957
 Sec. 13 Works in which Copyright subsists?
 Sec. 14 Meaning of a Copyright.
 Sec. 51 Infringement of a Copyright.
 Sec. 52 Fair use in a Copyright
 Remedies for infringement
Copyright Law - India
 Meaning of Cyberspace:

 Cyberspace is the electronic medium of


computer networks, in which online
communication takes place.
Copyright Law - India
 Definition of Literary Work:

 Section 2(o) of the Copyright Act, 1957:

"'literary work' includes computer programs,


tables and compilation including computer
databases."
Copyright Law - India
 Subject matter of Copyright on Internet:
 computer database,
 computer programmes/software,
 computer layouts design,
 various works on web
 Multimedia works etc.
computer database and Copyright
 Database refers to collection of data, works,
information or other independent material arranged
in a systematic way.

 databases should be given copyright protection as they


are the result of skill and labour employed by the
author in creating the work.

 Ex. The name, employee identification number,


address, telephone number of the Employee
computer database and Copyright
 The compiling author makes his selection of
individual items of the database to include them in an:
1. Orderly manner
2. Arrangement in a effective way for users
3. Direction of compilation is sufficiently original.

Note: Copyright laws are not concerned with the origin of


ideas, but with the expression of thoughts.
computer software as Copyright
 Meaning of a Software:

 For a computer to work, it has to be programmed,


i.e. given a set of instructions in a language that
computers understand. These programs are
referred to as "software", to distinguish them from
"hardware"
computer software as Copyright
 some examples of software:
a. Operating systems, such as Microsoft
Windows, and Linux.
b. Software for general, everyday use, such
Web browsers, word processors,
spreadsheets, software for making
presentations, etc.
c. More specialized software, such as
computer-aided design software, software
for statisticians, software for accountants,
etc.
computer software as Copyright
 In India, the Intellectual Property Rights (IPR) of
computer software is covered under the Copyright
Law.
 Accordingly, the copyright of computer software is
protected under the provisions of Indian Copyright
Act 1957.
 Computer software is protected as literary work
Copyright and Digital Technologies
 All works now can be digitalised whether
they compromise texts, images, sound,
animation, photograph.
 The ease with which works in digital form
can be replicated posed a difficult problem
for the law to handle.
 Perfect multiple copies can be generated
by the same technology.
 Such copies can be made available and
Copyright Protection in USA
 The Digital Millennium Copyright Act 1998
 (DMCA) is a United States copyright law that
implements two 1996 treaties of the World Intellectual
Property Organization (WIPO).
 It provides a mechanism for copyright holders to
protect their online content.
 Once an author becomes aware that his work is being
infringed upon it is up to the copyright holder to notify
the Internet Service Provider (ISP)/Online Service
Provider (OSP) that contains the material about the
alleged infringement.
Landmark cases
 Napster Case: A&M Records, Inc. v. Napster,
Inc. External link 239 F.3d 1004 (2001),
 Napster was a company formed by eighteen year old Shawn
Fanning at North eastern University. Napster was the first
user-friendly peer-to-peer file sharing service, which allowed
any user to access other users' MP3 files, which were easily
downloaded.
 Napster also introduced a simple searching ability from
their central server, allowing users to quickly access a list of
available files for which they would be searching.
 Napster quickly rose in popularity to its peak in 2001, as
millions of users continued downloading song files for free
from other computers around the world.
Napster Case:
 This was a landmark intellectual property case in which
the United States Court of Appeals for the Ninth Circuit affirmed
the ruling of the United States District Court for the Northern
District of California, holding that defendant, peer-to-
peer (P2P) file-sharing service Napster, could be held liable for
infringement.

 This was the first major case to address the application of


copyright laws to peer-to-peer file-sharing.

 Direct infringement The Circuit Court agreed with the district court's
determination that Napster users were probably engaging in direct
infringement of plaintiffs' copyrights.
Napster Case:
 Contributory infringement
 In order to prove contributory infringement, a plaintiff must
show that a defendant had knowledge of infringement (here,
that Napster knew that its users were distributing
copyrighted content without permission across its network)
and that defendant supplied material support to that
infringement.

 The Court held that since Napster was aware the specific
infringing files being transmitted through its system it could
be held for contributory liability.
Super Cassettes v. MySpace
 In 2007, Super Cassettes Industries Limited (SCIL) filed a
suit against MySpace, a social networking platform,
alleging copyright infringement against MySpace.

 The platform allowed users to upload and share media


files, inter alia, and it was discovered that users were
sharing SCIL’s copyrighted works.

 SCIL promptly proceeded to file a civil suit against


MySpace for primary infringement under section 51(a)(i)
of the Copyright Act.
Super Cassettes v. MySpace
 On 23rd December 2016, Delhi High Court delivered a
decision overturning the 2012 order in the matter of Super
Cassettes Industries Limited v. MySpace.

 The 2012 order was heavily criticized, for it was agnostic to


the technological complexities of regulating speech on the
Internet and cast unnecesssary burdens on MySpace.

 The latest judgment in the matter of Super Cassettes v.


MySpace is a landmark and progressive ruling, which
strengthens the safe harbor immunity enjoyed by Internet
intermediaries in India.
Super Cassettes v. MySpace
 A safe harbor is a provision of a Statute or a regulation
that specifies that certain conduct will be deemed not to
violate a given rule.

 The Digital Millennium Copyright Act (DMCA) has notable


safe-harbor provisions which protect Internet service
providers from the consequences of their users' actions.

 It interprets the provisions of the IT Act, 2000 and the


Copyright Act, 1957 to restore safe harbor immunity to
intermediaries even in the case of copyright claims.
Super Cassettes v. MySpace
 MySpace Complying with Safe Harbor Requirements Sec. 79
IT Act 2000 & Intermediary Rules, 2011)
 The court held that MySpace's operations were in compliance with section
79(2)(b). The content transmission was initiated at the behest of the users, the
recipients were not chosen by MySpace, neither was there modification of
content.

 On the issue of modification, the court reasoned that since modification was an
automated process which changed the format only, without MySpace's tacit or
expressed control or knowledge, it was in compliance of the legislative
requirement.
Ban on Songs.pk
 The Calcutta High Court has passed an ex-parte injunction restraining a
number of Internet Service Providers (ISPs) from providing access
to www.songs.pk, a website which has gained notoriety for providing the
latest Bollywood music for free downloading to all visitors.

 The lawsuit before the Calcutta High Court has been filed by the
Phonographic Performance Ltd. (PPL), Indian Music Industry (IMI) and
Sagarika Music Pvt. Ltd.

 The defendants named in the suit are various ISPs such as Dishnet Wireless
Ltd, Reliance Wimax Ltd, Hathway Cable & Datacom Pvt Ltd, Hughes
Communications Ltd India, Tata Teleservices (Maharashtra) Ltd, Reliance
Communications Infrastructure Ltd, Wipro Ltd, Sify Technologies Ltd, Bharti
Airtel Ltd, Vodafone India Ltd, and BG Broadband India Pvt Ltd.
John Doe” orders or “John Doe”
injunctions
“John Doe” orders or “John Doe” injunctions are “cease and desist”
orders passed by a court against anonymous entity/entities. These
orders in the recent times have been issued in matters of protecting
copyrights.

Order 7 Rule 1 of the Code of Civil Procedure provides that the plaint
shall contain the name, description and place of residence of the
defendant so far as can be ascertained.

When such identification is unknown, a “John Doe” suit is


maintainable. An U.S. Court held that for entertaining the John Doe
suit, the plaintiff should identify the missing party with sufficient
specificity such that the Court can determine that the defendant is a
real person or entity who could be sued in federal court.
Reliance Pictures v. ‘John Doe’s I.A. No. 13476/2011 in
the Delhi High Court (“Bodyguard” Movie Case)

 In the Bodyguard Movie Case, the Delhi High Court opined that
“defendants and other unnamed and undisclosed persons, are
restrained from communicating or making available or
distributing, or duplicating, or displaying, or releasing, or
showing, or uploading, or downloading, or exhibiting, or playing,
and/or defraying the movie ‘Bodyguard’ in any manner without a
proper license from the plaintiff or in any other manner which
would violate/infringe the plaintiffs copyright in the said
cinematograph film ‘Bodyguard’ through different mediums like
CD, DVD, Blue-ray disc, VCD, Cable TV, DTH, Internet services,
MMS, Tapes, Conditional Access System or in any other like
manner. Plaintiff is permitted to publish the ‘John Doe’
injunction order passed in the local newspapers.”
Scope of Online Service Provider
Liability
• Addressed by Digital Millennium
US Copyright Act of 1998

• Addressed by Digital Economy Act 2010


UK (DEA).

• Addressed by Information Technology


India Act, IT (Amendment) Act, 2008
Intermediaries Under IT Act 2000
In India, intermediaries are governed under the IT
Act, which defines an intermediary as “any person who
on behalf of another person receives, stores, or
transmits that electronic record or provides any service
with respect to that record”.

This definition is very wide and covers a diverse set of


service providers, ranging from Internet service
providers, search engines, web hosting service
providers, to e-commerce platforms or even social
media platforms.
Indian Safe Harbour
 India grants intermediaries a conditional safe harbour under the IT Act
and the Information Technology (Intermediaries Guidelines) Rules 2011.
 Section 79 of the IT Act provides that an intermediary is not liable for any
third-party content hosted/made available through such intermediary
when: (1) the function of the intermediary is limited to providing access
to the system; or (2) the intermediary does not initiate, select the receiver
of or select/modify the information contained in a transmission; and (3)
the intermediary observes due diligence and abides by other guidelines
prescribed by the Government.
 The 2011 Intermediaries Guidelines provides a diligence framework to
be followed by intermediaries in order to avail of the exemption under
Section 79. Various procedures have been prescribed which need to be
observed by an intermediary, such as (i) the need to inform the users of
the computer resource not to transmit any information that among
other things is harmful, obscene or defamatory; (ii) the requirement to
“act within 36 hours” of receiving knowledge of the transmission of any
prohibited information; and (iii) the requirement to disable information
that is contradictory to the Intermediaries Guidelines.
Sega Enterprises Ltd. v. Maphia
857 F. Supp. 679 (N.D. Cal. 1994)
 The defendants owned and operated a computer bulletin board service.
Sega was the copyright owner of various video games as well as the
trademark Sega.

 With defendants' knowledge and indeed with their encouragement, users


of the bulletin board service uploaded and downloaded various Sega
copyrighted video games onto the bulletin board.

 The court further found that defendants profited from this activity
through sale of other services.
Sega Enterprises Ltd. v. Maphia
857 F. Supp. 679 (N.D. Cal. 1994)
 Moreover, the court found that many of the games were located in
files on defendants' computer bearing the name Sega, which also
appeared when a Sega video program downloaded from the bulletin
board was run.
 Sega brought an action against the defendants, charging them, inter
alia, with federal copyright and trademark infringement, unfair
competition and false designation of origin, as well as the violation
of a series of California statutes.
 On Sega's motion, the court issued a preliminary injunction, which
enjoined defendants from continuing to engage in this conduct and
directed the seizure of infringing materials in defendants'
possession.
 The injunction included a provision barring defendants from
making Sega programs available to users of the bulletin board in
question, or storing Sega video programs in files accessible to such
bulletin board users.
Eastern Book Company Limited v D. B
Modak (2008) 1 SCC 1
 The appellants were engaged in business of printing judgements of the
Supreme Court of India through its publication ‘Supreme Court Cases’.
These judgements would be copyedited by them to make these more
user friendly by putting cross references, inputs, paragraph numbers,
formatting and headnotes.

 Appellants contended the work is an original literary work and the


appellants alone had exclusive rights to make hard copies or electronic
copies of the publications under Section 14 of the Copyright Act, 1957.

 It was alleged by the appellant that the respondent had produced a


software called Grand Jurix by scanning, copying and reproducing
portions of the publication of the Appellant which constituted
infringement of copyright as per Section 51 of the Copyright Act.
Eastern Book Company Limited v
D. B Modak (2008) 1 SCC 1
 Judgments delivered by the Supreme Court would be a government work
and in the absence of any agreement to the contrary, the government
shall be the first owner of the copyright in the judgments of the Supreme
Court.
 For the reasons stated in the aforesaid discussion, the appeals are partly
allowed.
 The respondent-defendants shall be entitled to sell their CD-ROMS with the text
of the judgments of the Supreme Court along with their own head notes,
editorial notes, if any, they should not in any way copy the head notes of the
plaintiff-appellants;
DRM (Digital Rights Management)
 Digital rights management includes technologies that control the use,
modification, and distribution of copyrighted works.
 Copyright holders are allowed to use DRM to safeguard their work being
duplicated or utilized by others.
 However, copyright laws across the world allow fair use of the
copyrighted work.

 Ex. Limitation as to number of copies, limitation as to copy/install the


material / information.
DRM (Digital Rights Management)
 E-content can be locked and it can be
used by authorised persons only.
 Due to this DRM, persons can not use this
even for fair use/proper use.
 WPPT and WCT mandates parties to have
adequate and effective legal remedies to
prevent the misuse of online data/
information.
 Though India is not a member of WPPT
DRM under Copyright Act 1957
 The new section 65A, introduced technological
protection measures (TPM) used by a copyright owner
to protect his rights on the work, makes circumvention
of it a criminal offence punishable with imprisonment
which may extend to two years and shall also be liable
to fine.
 Section 65B has been introduced to provide protection
of rights management information.
 The introduction of Sections 65A and 65B is expected
to help the film, music and publishing industry in
fighting piracy.
Functions of DRM
It controls number of copies that can be made.

It specifies modifications allowed.

How much of work can be accessed, after its sale to the user.

DRMs are widely used in e-books, video-games , computer softwares


etc.
Linking Framing

Metatagging
Linking
 Linking to one website with another is considered as
Copyright infringement in cyberspace.

Linking

Surface Deep
Linking Linking
Surface Linking:
 Surface linking, where the home page of a site is linked.
 Surface link transfers the user from the webpage of one
site to the home page of the linked site.
 A simple link from one Web site to the home page of another
Web site does not normally raise concern.
Deep Linking:
 Linking to the internal pages of the website is called as the
Deep Linking.
 This takes the user to the internal web pages without having
any look to the homepage of the website.
 The problem arises only with regard to the practice of deep
linking.
Relevant cases on Linking
 Ticketmaster Corp., et al. v. Tickets.Com, Inc.
 United States District Court for the Central District of California 2000
 Both the plaintiffs and defendants had websites providing information
about sports events.
 The decision permitted Tickets.com to place deep links to Ticketmaster
 Tickets.com used to sell the events ticket online. Tickets.com had created
a link to its webpage i.e. “Buy this ticket from another online ticketing
company.”
 Clicking on this link used to instantly transfer the customer to the interior
webpage of Ticektmaster.
 It was held in this case that deep linking didn’t violate the Copyright Act of
1976.
Shetland Times Ltd v Dr Jonathan Wills and
Zet News Ltd. (1997) FSR 604,
 This is another Scottish case relating to deep linking.
 The plaintiff owns and publishes The Shetland
Times newspaper.
 The defendant had deliberately reproduced the headlines of
plaintiffs site and were hyperlinked to the internal pages of
the plaintiffs site.
 The Defendant had bypassed the home page of the plaintiff
which carries the paid advertisement.
Shetland Times Ltd v Dr Jonathan Wills and
Zet News Ltd. (1997) FSR 604,
 Issue: Whether deep linking to the plaintiffs websites
news headlines was an act of copyright infringement
under the UK’s Copyright Designs and Patents Act
1988.

 The Court rightly granted an interim injunction for


Copyright protection and issued order against
defendant for not involving in such activities.
Ticket Master Corporation vs. Microsoft
Corporation April 28, 1997
 Ticketmaster filed a suit against Microsoft for practice of deep linking
without permission of the plaintiff.
 The plaintiff i.e. was losing advertising revenue because of the diversion of
the users.
 The plaintiff had entered into contract with other companies for linking to
its website.
 However, Microsoft was availing this service free of cost by hyper linking.
 The matter was settled down out of the court, deep links were removed by
the defendant.
Thank you….