Copyright and the Challenge of ‘User-generated Contents’
by: prashant_dahat
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India has one of the most modern copyright protection laws in the world. Major development in the area of copyright during 1999 was the amendment to the Copyright Act of 1957 to make it fully compatible with the provisions of the TRIPS Agreement. Called the Copyright (Amendment) Act, 1999, this amendment was signed by the President of India on December 30, 1999 and came into force on January 15, 2000.
The earlier 1994 amendment to the Copyright Act of 1957 had provided protection to all original literary, dramatic, musical and artistic works, cinematography, films and sound recordings. It also brought sectors such as satellite broadcasting, computer software and digital technology under Indian copyright protection.
The Copyright Act is now in full conformity with the TRIPS obligations.
The other important development during 1999 was the issuance of the International Copyright Order, 1999 extending the provisions of the Copyright Act to nationals of all World Trade Organization (WTO) Member countries.
Concern has been expressed about the allegedly slow judicial system in India and the procedural issues involved in trial and conviction. The Indian judiciary is handling cases as expeditiously as possible. The year that has gone by has again witnessed the versatility of the impartial and independent Indian judiciary when it comes to the issue of protection of intellectual property rights, amplified by the encouraging trends with Indian courts plugging in gaps in the statute with the common sense of the common law.
The Copyright Act, 1957 prescribes mandatory punishment for piracy of copyrighted matter commensurate with the gravity of the offense with an effect to deter infringement, in compliance with the TRIPS Agreement. Section 63 of the Copyright Act, 1957 provides that an offense of infringement of copyright or other rights conferred by the Act shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees (Rs. 200,000).
Section 63A provides for enhanced penalty on second or subsequent convictions, i.e. imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees (Rs. 100,000) and which may extend up to two lakh rupees (Rs. 200,000). Section 63B provides that any person who knowingly makes use on a computer an infringing copy of a computer program shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees (Rs. 200,000).
For India where the per capita income at current prices is Rs.14,682/- or US $349, the quantum of the fines, which works out to be 14 times the per capita income, is quite a burden on an individual and would act as a strong deterrent.
As regards the reported requirement that actual knowledge be proved in criminal cases, the expressions “knowingly infringes or abets infringement” in Section 63 and “knowingly makes use” in Section 63B are included to protect bona fide users. It may be noted that the expression “knowingly” was there even in the analogous Section 7 of the Indian Copyright Act, 1914. Bringing the principle of “ignoratia juris reminem excusat” may not be appropriate in the case of copyright as there are quite a large number of works which are in the public domain that a person can use freely, and it is natural for many to presume that such works are outside the copyright regime. Copyright is a special right created by law to protect certain rights of authors while keeping a balance of the interest of the society. It will be too much to expect an ordinary user to sit in judgment like a court of law as to every single aspect of the right which may or may not be applicable to a work before using the same.
So far as Article 41 and 61 of the TRIPS Agreement are concerned, India has a modern and efficient judicial system that fits in with the general obligations provided in Article 41. Article 61 of the TRIP Agreement provides that remedies available shall include imprisonment or monetary fines sufficient to provide a deterrent consistent with the level of penalties applied for a crime of corresponding gravity. The Indian Copyright Act, provides for both imprisonment and fine which in the Indian context would be a sufficient deterrent.
Civil proceedings against piracy have been quite effective - a result unique in the global enforcement against copyright piracy. For instance, in 1999, the Motion Pictures Association (MPA), filed 3 civil actions against 3 Indian cable networks and obtained injunctive relief covering 45 cities and 8 million cable homes. MPA has estimated that by these injunctions alone, cable piracy has been brought down by 50%.
Further, provisional measures, such as injunctions and ‘Anton Piller’ orders, are available through the Indian courts to stop infringement and to contain any damages. Both foreign and domestic IPR holders are treated equally under Indian law.
Indian enforcement agencies are working effectively and there is a decline in the levels of piracy in India. In addition to intensifying raids against copyright infringers, the Government has taken a number of measures to strengthen the enforcement of copyright law. A summary of these measures is given below:
During the year the government continued to stress the need for strict enforcement of the Copyright Act and Rules. State governments and other Ministries were regularly requested to lay special attention to ensuring copyright protection in their functioning. Instructions were issued to officers in the government requesting them to ensure copyright protection, particularly of software, in their work situation.
The Government also brought out A Handbook of Copyright Law to create awareness about copyright amongst the stakeholders, enforcement agencies, professional users like the scientific and academic communities and members of the public. Copies of the Handbook were circulated free of cost to the state and central government officials and police personnel and also provided to participants in various seminars and workshops on IPR matters held during the year.
National Police Academy, Hyderabad and National Academy of Customs, Excise and Narcotics conducted several training programs on copyright for the police and customs officers. Modules on copyright have been included in their regular training programs.
The Department of Education, Ministry of Human Resource Development, Government of India has initiated several measures in the past for strengthening the enforcement of copyrights that include constitution of a Copyright Enforcement Advisory Council (CEAC), creation of separate cells in state police headquarters, encouraging setting up of collective administration societies and organization of seminars and workshops to create greater awareness about copyright law among the enforcement personnel and the general public.
The CEAC is reconstituted from time to time to review periodically the progress of enforcement of the Copyright Act and to advise the government on measures for improving the enforcement. Additional Secretary, Department of Education is the chairman of the CEAC. The CEAC members include representatives of copyright industry organizations and chiefs of state police forces. The CEAC meets at least twice every year. It discusses in detail issues of enforcement, piracy, etc.
Special cells for copyright enforcement have so far been set up in 23 States and Union Territories, i.e. Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Diu, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab, Sikkim, Tamil Nadu, Tripura and West Bengal. States have also been advised to designate a nodal officer for copyright enforcement to facilitate easy interaction by copyright industry organizations and copyright owners.
For collective administration of copyright, copyright societies have been set up for different classes of works. At present there are three registered copyright societies. These are the Society for Copyright Regulations of Indian Producers of Films & Television (SCRIPT) for cinematography films, Indian Performing Rights Society Limited (IPRS) for musical works and Phonographic Performance Limited (PPL) for sound recordings. These societies, particularly the PPL and the IPRS, have been quite active in anti-piracy work. The PPL has even set up a special anti-piracy cell under a retired Director General of Police, and this cell has been working in tandem with the police.
The Government also initiates a number of seminars/workshops on copyright issues. The participants in these seminars include enforcement personnel like the police as well as representatives of industry organizations.
Several other measures to create general awareness about copyright and for encouraging study of intellectual property rights in the educational system, besides modernizing the Copyright Office, are on the anvil.
Consequent to the number of measures initiated by the government, there has been more activity in the enforcement of copyright laws in the country during the last year compared to previous years. As per the data relating to copyright offenses available with the National Crime Records Bureau, the number of copyright cases registered has gone up from 479 in 1997 to 802 in 1998. The number of persons arrested has increased from 794 in 1997 to 980 in 1998. The value of seizures has gone up from Rs.2.88 crore (28.8 million) in 1997 to Rs.7.48 crore (74.8 million) in 1998. These figures reflect the general improvement in the enforcement of the copyright law.
User-Generated Content
What if someone uses the material you have written (that too after all the effort you would have put to get it right!)? How can you protect the material you write? How can you tell the world ‘this is my writing’ and don’t mess with it! Whether copyright is really effective in the digital world is another point altogether. Here, we have tried to answer some of basic questions for you.
Copyright is used to describe the right a writer/ creator has over his/her works. It is an intellectual property right.
Literally nothing! The minute you write and publish something, you have the copyright by default! Though, it helps to also formalize it by registering.
Copyright protects by law any literary, dramatic, artistic and musical work including films, soundtracks, and computer programs.
Copyright means the exclusive right to reproduce, translate or adapt the work for public dissemination and performance by any means. Once published, you enjoy copyright to your work during your lifetime and your heirs have the rights for another 60 years. You can choose to transfer your complete, partial or territorial rights as per your business priorities. The Indian Copyright Act empowers the authors by providing moral rights also.
Moral rights are rights of the author even after he has transferred his copyrights for business purposes. They allow an author to claim damages in case of distortion of facts, modification, mutilation of his work or any disrepute or dishonor. Moral rights can be exercised when one observes gross violation of the literary work. It varies across countries. India empowers authors by providing the moral rights. The first step would be to check if it was out of sheer ignorance and remind them to rectify the mistake. If the other party is non conciliatory and maximizing profit on your work, then it is an outright criminal offence. You may lodge an official police complaint. For more on that refer to Section 63 of the Copyright Act.
Usually all published documents have a copyright notice and year of copyright mentioned at the beginning of the book along with all other documentary information. The symbol © implies copyright. On books and websites, it is most commonly written as: © XYZ Publication, 2007
You need to get written permission from copyright owner for use of copyright material. The contact information is usually available in published documents and websites. Under copyright act, fair use of information is permissible for educational and other purposes. Copyright is a country specific right.
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About the Author
Name: Prashant R. Dahat LL.M 1st Year, National Law Institute University (NLIU), Bhopal. E-mail: prashant_dahat@yahoo.co.in, prashantdahat@gmail.com Permanent Address: A-13/3 Vyankatesh Nagar, Nandanvan, Nagpur - 440009. (M.S) Contact Number: 09770338751
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