Abstract
The beginning of the Internet since 1970s and the commercialization of its use in 1990s has been a challenging era for the Law makers and the Intellectual Property Right holders/owners. The copyright protection in the digitalized technology has witnessed an economic setback to the copyright holder and its quick and simple accessibility; a boon to the violators. Digitalization has also enabled information to be easily stored, reproduced and transmitted through internet as the web 2.0 era has made information storage, sharing and collaboration easier. The digitalisation has made the cyberspace an interwoven virtual community. While the digitalization of copyright material has made the information access easy and available, it has rather posed complications, technical and non-technical hitches to the holders/owners in a multi-faced ways. Combating piracy i.e. mass piracy, counterfeiting, circumventing methods etc., have all challenged the existing laws. The international pressure of the copyright holders has pressured the states to pass various laws and under the ambit of the WIPO that brought WCT and WPPT, most of the states are proposing their laws to be at par with the international changes in the copyright law. The copyright protection had problems and challenges during all the phases of digital technology. The major changes that took place with serious concerns are in the two major phases’ that are well known as Low-Tech and High-Tech Era. The further classification of the Digital Era can be basically divided into the Analog Phase and Digital phase which have further intensified the infringements with greater challenges to the law makers. However, it is found that states are slowly sliding from the civil remedy approach to that of criminalisation of the copyright law, aiming to fulfil the demands and rationale anguish of the copyright holders’. This change is seen rather in almost all the countries, as the copyright holders are keen for criminal law to prevail at least in few circumstances. In the US both these phases have seen various laws passed by the congress to criminalise copyright like the ACPA, RICO, NET, DMCA, Pro-IP Act etc. The European Union has also brought in changes in order to criminalise the copyright infringements with the Directive on the harmonisation of certain aspects of copyright and related rights in the information society and Directive on Enforcement of Intellectual Property Rights along the lines of WIPO and TRIPs. India though is not a signatory to the WCT and WPPT; it amended the Copyright Law in the year 2012 and added section 65A, that criminalises the copyright infringement in the electronic/digital forms especially relating anti-circumvention and Rights Management Information. The criminalisation of copyright violation is shaping up in a new direction since the advancement of technology. The criminal liability is present either with the civil remedy or in addition to the civil remedy. The digital era has three fold violators i.e. the mass violators who violate copyright law for the commercial purpose, the user (individual users) and the new member is the Online Service Provider (OSP) who may have knowledge of copyright violations while providing services. Overall it can be observed that there is an overthrow of laws since Napsters (P2P) and in addition with the online hosting. As they pose newer challenges that are expected to have deadly effects on the copyright. In this paper the author would look into the changes in copyright law and its inclination towards criminalisation and its impact.
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Notes
- 1.
The online world of computer networks and the Internet (Merriam-Webster 2016).
- 2.
Peer-to-peer (P2P) is a decentralized communications model in which each party has the same capabilities and either party can initiate a communication session (searchnetworking.techtarget.com/definition/peer-to-peer).
- 3.
BitTorrent is a leading software company with the fastest torrent client and sync and share software for Mac, Windows, Linux, iOS and Android, available at: www.bittorrent.com (last visited March 12, 2016).
- 4.
An on-line internet site for storage of personal digital files. Cyber lockers are also known as cloud storage or file storage services, enable users to keep files, or back them up, on the internet. Users can access files from these virtual storage lockers, which operate on remote servers, from any computer with an internet connection, often more quickly than on personal computers. Many of these sites offer limited free storage, and users can pay for more capacity through subscriptions, available at: http://in.reuters.com/article/newzealand-dotcom-cyberlockers-idINDEE90I03320130119 (Last Visited March 12, 2016).
- 5.
Geraldine Szott Moohr.
- 6.
Swaraj Paul Barooah.
- 7.
545 U.S. 913(2005). Here the defendant distributed free software that allowed private individuals to share copyrighted electronic files without authorization. Some files were movies and songs that were copyrights of MGM. The issue was whether the distributor of a product is capable of lawful and unlawful use is liable for infringement as per the copyright law by a third party, when the distributor takes affirmative steps to foster infringement through the use of its product, or will the distributor liable for that infringement conducted by 3rd parties.
- 8.
Brown 2006.
- 9.
Shadow Market 2012.
- 10.
Ibid.
- 11.
Girish Gandhi and etc. v. Union Of India (UOI) And Anr. AIR199Raj78.
- 12.
To avoid being stopped by (something, such as a law or rule): to get around (something) in a clever and sometimes dishonest way. Merriam-Webster 2016.
- 13.
DMCA prohibits circumventing ace control measures as per the 17 U.S.C §1201 (a) (1). DMCA makes it unlawful to bypass this ACM. These control systems are in e books also. But some copyright holder merge access control and copyright control measures in the same DRM system.
- 14.
Moohr 2003.
- 15.
Helton 2007.
- 16.
(The staple article of commerce test and the inducement test, respectively), and provides a deeper analysis of the staple article of commerce doctrine under patent and copyright law.
- 17.
464 U.S. 417 (1984).
- 18.
Ibid.
- 19.
Supra note 16.
- 20.
545 U.S. 913 (2005).
- 21.
“Grokster’s eponymous software employs what is known as FastTrack technology, a protocol developed by others and licensed to Grokster. StreamCast distributes a very similar product except that its software, called Morpheus, relies on what is known as Gnutella technology”.
- 22.
Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002); Nunez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000); Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998); See Elisa Vitanza, Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 14 Berkeley Tech. L.J. 43 (1999).
- 23.
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984) (noting the “historic kinship between patent law and copyright law.”) Notably, courts have not imported this patent law doctrine into the analysis of vicarious copyright infringement. See A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (noting that “Sony’s ‘staple article of commerce’ analysis has no application to Napster’s potential liability for vicarious copyright infringement.”).
- 24.
Staple Article of Commerce under Patent Law—The legal treatise Patent Law Fundamentals explains that, “[w]ith respect to patents, the applicability of the doctrine of contributory infringement is limited by statute to a component (or a combination of components) which has no substantial non-infringing use and which therefore must be almost uniquely suited for use as a component of the patented invention.” This principle has been codified into patent law as the “staple article of commerce doctrine,” which recognizes that the distribution of a component of a patented device will not violate the patent if it is suitable for other, non-infringing uses. Justice Blackmun, dissenting in Sony, noted that “[t]he ‘staple article of commerce’ doctrine protects those who manufacture products incorporated into or used with patented inventions—for example, the paper and ink used with patented printing machines, or the dry ice used with patented refrigeration systems.
- 25.
Helton 2007.
- 26.
In Re Aimster Copyright Litigation, 252 F. Supp. 2d 634 (N.D. 111. 2002).
- 27.
The BitTorrent homepage describes BitTorrent as a “free speech tool,” giving individuals the freedom to publish that was previously enjoyed by only a select few with the right equipment and requisite finances.
- 28.
Om Malik to GigaOM, gigaom.com/2005/08/10/p2p-is-bere-tostay-deal-witb-it (last visited on December 26th, 2016) (noting that the transfer of video files, which are typically large in size; now accounts for 61.44% of file sharing activity on the P2P networks, while audio is only 11.24%).
- 29.
The DMCA is a federal law that increases penalties for online copyright infringement. The DMCA criminalizes circumventing DRM software designed to prevent file sharing. The creation and sharing of technology or software that is designed to defeat copyright protections is also criminalized. There are both civil and criminal penalties for violations of the DMCA. Intentional violations of the DMCA can result in monetary damages as well as imprisonment.
- 30.
Civil Penalties: The DMCA allows registered copyright owners to file a lawsuit in a federal district court. The federal court has the power to grant injunctions against the defendant to prevent future infringements. The defendant may have to pay actual damages up to $2,500 per violation, or statutory damages up to $25,000. The plaintiff may also recover any profits the defendant made from the infringement. Repeat offenders may face triple damages if they violate the DMCA within three years of a judgment.
- 31.
Supra Note 30.
- 32.
- 33.
Ibid.
- 34.
The federal court can impound property that it believes was used to violate the DMCA. If the defendant is found to have violated the DMCA, the court can order the destruction of the defendant’s property; the court can also order the destruction of goods produced by those tools. Any technology a defendant used to circumvent copyright protections or violate the plaintiff's copyrights, such as CD and DVD burners, computers and software disks can be seized or destroyed. A court can order the destruction of tools used to violate the law.
- 35.
Copyright owners may send a “take down” notice to an ISP demanding that copyright material be removed from a website. The ISP must act quickly to remove or block access to content described in the notice. The person who uploaded the content may respond with a counter notice to restore the content. A person who sends takedowns or counter notices without proof or files frivolous notices faces fines and attorney fees. There is also the possibility of criminal sanctions because DMCA notices are signed under penalty of perjury.
- 36.
H. Maria Perry.
- 37.
Ibid.
- 38.
Supra note 9.
- 39.
“Digital Rights Management (DRM) & Libraries”, American Library Association.
- 40.
Norwood 2014.
- 41.
“During the triennial process, consideration is given to the availability of the copyrighted work, which includes its use for non-profit preservation efforts and educational purposes. The effects a prohibition on circumventing DRM technologies would impose upon “criticism, comment, news reporting, teaching, scholarship, or research,” is also considered. Further consideration is given to the copyrighted work’s market value. Cellular service providers agreed and would have supported a specific exception to permit individual consumers of wireless carriers to unlock phones for the purpose of switching networks. Such a carefully drafted exception arguably would have maintained a balance between copyright owner rights and consumer rights without stifling competition and innovation. Rather than narrowly tailoring the exemption to allow consumers to unlock cell phones in order to obtain service from another provider, the Librarian of Congress simply eliminated the cell phone exemption completely”.
- 42.
Ibid.
- 43.
Ibid.
- 44.
Media 2012.
- 45.
- 46.
Amrendra N. Tripathi.
- 47.
SAP Aktiengesellschaft and another v. Appsone Consulting India Private Limited and another (27th July, 2015) 2015 Indlaw DEL 3523, here it was a case of the plaintiffs, that the plaintiff No. 2 through its Agents EIPR India Limited, immediately on becoming aware of the defendants’ activities lodged a criminal complaint with the Police in Navi Mumbai, on 1st October, 2008. The Police Team, accompanied by representatives of the plaintiff No. 2, carried out investigations at the Navi Mumbai premises of the defendant No. 1. During the search operations, the Police team was able to recover hard disks, servers, containing pirated software SAP R.3 Release 4.6B of the plaintiffs, SAP Brochures, SAP Study materials, record book of SAP certificates issued to the students, 12 nos. of SAP loaded CDs, which were being used for providing training on SAP software. The Police team thereafter seized these servers. Thereafter, FIR No. 119/08 dated 1st October, 2008 was registered in this regard for offences committed under the provisions of Sections 51, 52, and 63 of the Act and also under Section 420 IPC. It is alleged that the defendants are not spending any amount for the research work of softwares and the defendants are merely doing illegal activity without any investment therefore the profit margin of the defendants is very high.
- 48.
Intermediaries are given immunity under The Information Technology Act, 2000, s.79. However, they can still be held liable under Section 72A for disclosure of personal information of any person where such disclosures are without consent and with intent to cause wrongful loss or wrongful gain or in breach of a lawful contract. Proviso to Section 81 of the Information Technology (Amendment) Act, 2008 states that nothing contained in the Act shall restrain any person from exercising any right conferred under the Copyright Act 1957 and the Patents Act 1970. Though experts state that, this provision has created a lot of confusion as to the extent of liability provided under Section 79. The Information Technology (Amendment) Act 2008 makes a genuine effort to provide immunity to the intermediaries but needs to plug in some gaps so as to enable the intermediaries to operate without fear and inhibitions. Also read, India: Intermediaries Under The Information Technology (Amendment) Act 2008, available at: http://www.mondaq.com/india/x/225328/Telecommunications+Mobile+Cable+Communications/Intermediaries+Under+The+Information+Technology+Amendment+Act+2008 (last visited April 1, 2016).
- 49.
The Information Technology Act, 2000, s. 81. reads: “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”
- 50.
The Copyright Act, 1957, s.63 reads: “Any person who knowingly infringes or abets the infringement of—
(a) the copyright in a work, or
(b) any other right conferred by this Act, shall be punishable with imprisonment which may extend to 1 year, or with fine, or with both.
Explanation—Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section”
- 51.
Dhiraj Dharamdas Dewani v. Sonal Info Systems Private Limited and other, 2012 SCC OnLine Bom 351. The court has stated as to how both civil and criminal remedies are alternative remedies. Penal provisions of ss. 63, 63-B and 64 of the Copyright Act clearly show that a person knowingly making use of a computer by infringing copy of a computer programme shall be criminally liable. It is well settled that provisions relating to penal provisions are required to be interpreted strictly.
- 52.
The Copyright Act, 1957, s.64 reads: “(1) Where a magistrate has taken cognizance of any offence under Section 63 in respect of the infringement of copyright in any work, it shall be lawful for any police officer, not below the rank of sub-inspector, to seize without any warrant from the magistrate, all copies of the work wherever found, which appear to him to be infringing copies of the work and all copies so seized shall, as soon as practicable, be produced before the magistrate.
(2) Any person having an interest in any copies of a work seized under sub-Section (1) may, within 15 days of such seizure, make an application to the magistrate for such copies being restored to him and the magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deed fit”
- 53.
Id., s.65 reads: “Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to one year, or with fine, or with both.”
- 54.
Id., s.65B reads: “Any person, who knowingly,—(i) removes or alters any rights management information without authority, or (ii) distributes, imports for distribution, broadcasts or communicates to the public. without authority, copies of any work, or performance knowingly that electronic rights management information has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine: Provided that if the rights management information has been tampered with in any work, the owner of copyright in such work may also avail of civil remedies provided under Chapter XII against life persons indulging in such acts.”
- 55.
Id., s.66 reads: “The court trying any offence under this Act may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies, or plates for the purpose of making infringing copies, be delivered up to the owner of the copyright.”
- 56.
AIR 1997 Raj 78.
- 57.
Ibid.
- 58.
Knowledge of an accused is an essential ingredient to constitute the offence of infringement for criminal prosecution. Neglect to ascertain the facts relating to copyright will not be tantamount to knowledge. Clear and cogent proof of knowledge is necessary to establish the offence.
- 59.
Sheo Ratan Upadhya v. Gopal ChandraNepali and Anr., AIR 1965 All 274.
- 60.
Ghurey Lal And Ors. v. State Through Ram Narain Pathak 1965 CriLJ 530.
- 61.
AIR 1967 Kar 234.
- 62.
Narayan 2007.
- 63.
Infringement. Although the statutory definition of infringement is ambiguous, the basic requirement in both civil and criminal cases is that the defendant unlawfully copied a work protected by a valid copyright. Copying can be established by direct evidence, but this is rarely available. As a result, the government will generally prove copying indirectly-by establishing the circumstances surrounding the defendant’s access to the copyright owner’s work and the substantial similarity between the defendant’s work and the copyright work.
- 64.
- 65.
Bright Tunes Music Corp. v. Harrisongs Music Ltd., 420 F. Supp. 177, 179-81 (S.D.N.Y. 1976).
- 66.
- 67.
Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1113 (2d Cir. 1986). (“[R]eliance-justified or otherwise-is irrelevant in determining whether [the defendant] infringed [the plaintiffs] copyrights. Even an innocent infringer is liable for infringement.”); FN 5 Ibid.
- 68.
Ibid. Also read, Barry v. Hughes, 103 F.2d 427, 427 (2d Cir. 1939).
- 69.
1710, Enacted by the parliament, available at: http://www.copyrighthistory.com/anne.html (last visited December 26th 2016).
- 70.
Supra note 71.
- 71.
See NIMMER, see also Kamar Int’l v. Russ Berrie & Co., 752 F.2d 1326, 1331 (9th Cir. 1984).
Samuelson and Wheatland 2009
- 72.
United States v. Moran, 757 F. Supp. 1046 (D. Neb. 1991).
- 73.
In pertinent part 17 U.S.C. §506(a) punishes as a criminal any “person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain.” Pursuant to 17 U.S.C. §106(3), the owner of a copyright has the exclusive right to “distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” The “exclusive right” of the owner of a copyright is subject to a variety of exceptions. See 17 U.S.C., §§107–118.
- 74.
In summary the judge stated “When Moran’s actions were viewed from the totality of the circumstances, the government failed to convince beyond a reasonable doubt that Moran acted willfully. Moran is a long-time street cop who was fully cooperative with law enforcement authorities. He is obviously not sophisticated and, at least from the record, his business operation of renting movies to the public was not large or sophisticated. Rather, Moran’s business appears to have been of the “mom-and pop” variety. Moran’s practice of “insuring,” while obviously shifting the risk of loss from Moran to the copyright holder, was conducted in such a way as not to maximize profits, which one assumes would have been his purpose if he had acted willfully. For example, Moran purchased multiple authorized copies of the same movie, but he made only one unauthorized copy for each authorized Version purchased. This suggests that Moran truly believed that what he was doing was in fact legal. I therefore find Moran not guilty”. http://cyber.law.harvard.edu/people/tfisher/IP/1991%20Moran%20Abridged.pdf (last visited 27th March, 2016).
- 75.
Arguing that “a defendant should be guilty of willfully infringing a copyright only if the government can prove an intentional violation of a known legal duty”); also read, Samuelson and Wheatland (2009).
(proposing a two-prong test for willful infringement consisting of actual knowledge and a violation of an affirmative duty to investigate to determine whether the activity will infringe upon those rights). Compare Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1115 (2d Cir. 1986) (finding willful infringement based on defendant’s knowledge and experience), with Original Appalachian Artworks, Inc. v. J.F. Reichert, Inc., 658 F. Supp. 458, 464 (E.D. Pa. 1987) (requiring knowledge plus outrageous conduct-reckless disregard-for willful infringement). See supra note 70
- 76.
Ibid.
- 77.
Ibid.
- 78.
The Department of Justice, for example, defines white-collar crime by listing several elements, including deceit.’ The Department’s definition also refers to the status of the defendant and the defendant’s special skills or training, but as one thoughtful commentator has noted, many wrongful acts like mail fraud are thought of as “white-collar” crimes, even though they do not involve a special skill or status of the defendant. The same commentator also has shown that the United States Chamber of Commerce, for instance, identifies “deceit” as the salient characteristic of such crimes.
- 79.
- 80.
Ibid.
- 81.
Ibid.
- 82.
The creator of the Napster software, Shawn Fanning, apparently did not have a profitable business in mind when he wrote the Napster program. Other relatives joined in and clearly were thinking of the file sharing system as a major business opportunity. But to end no profit motive appeared, as all downloads were free. Supra FN 83.
- 83.
Examples these days are legion: the teenagers who make a sport of finding and publicizing ways to defeat copy-protection technologies; or the computer scientists who believe that the research ethic requires them to publish their findings of vulnerabilities in a commercial encryption technology; or the college students who accumulate a collection of MP3 music files for their own enjoyment.
- 84.
- 85.
United States v. LaMacchia, 871 F. Supp. 535, 545 (D. Mass. 1994).
- 86.
The Digital Millennium Copyright Act, 1998.
- 87.
No Electronic Theft Act, 1997.
- 88.
LaMacchia case by adopting the “No Electronic Theft Act” (the “N.E.T” Act) in 1997 By the mid-1990s, the “new breed” of copyright infringers, whom we might characterize as falling between the “good” and “bad” ones, had clearly appeared on the scene. University student Brian LaMacchia heralded their arrival. LaMacchia started an online computer service with commonly available file uploading and downloading facilities. Not so commonly, however, he encouraged his users to upload commercial software packages for the privilege of being able to download still other commercial software packages that other users had uploaded. He did not, however, charge any fee or receive monetary compensation for this entirely unauthorized service. The lack of any purpose of “commercial advantage or private financial gain” meant that LaMacchia, although responsible for the production of perhaps thousands of infringing copies of commercial software, could not be charged with criminal copyright infringement. The government charged him instead with what must have looked to be the closest applicable criminal offense—wire fraud. The trial court found that the government could not establish the elements of that offense, however, and so the trial court exonerated him. In reaching that conclusion, the court essentially invited Congress to correct the problem of the inapplicability of criminal copyright infringement statutes to activities like those undertaken by LaMacchia.
- 89.
Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC), available at: http://eur-lex.europa.eu/homepage.html (last visited April 8, 2016).
- 90.
United States v. Wise, 550 F.2d 1180, 1188 (9th Cir. 1977).
- 91.
United States v. Schmidt, 15 F. Supp. 804, 807 (M.D. Pa. 1936).
- 92.
Krishnakumar and Saha 2012.
- 93.
Ibid.
- 94.
“As is commonly understood, DRM relates to the techniques and methods used to limit access or control over protected intellectual property after the initial sale by the right holder. Common examples include encryption or ‘scrambling’ of copyright music CDs and DVDs to prevent copying (or ‘ripping’), the locking of smart phones to particular service providers and the imposition of restrictive licensing agreements”.
- 95.
Panzarino 2016 FBI filed an order compelling Apple to unlock iPhone used by the attacker in San Bernardino and apple planned to fight back the battle for protection of consumer interest.
- 96.
The Copyright Act, 1957, s. 2(xa) reads as: “ ‘Rights Management Information’ means—
(i) the title or other information identifying the work or performance;
(ii) the name of the author or performer;
(iii) the name and address of the owner of rights;
(iv) terms and conditions regarding the use of the rights; and
(v) any number or code that represents the above information; but does not include any device or procedure intended to identify the user.”
- 97.
The Copyright Act, 1957, s. 65A(2)(b).
- 98.
National IPR Policy (First Draft), December 19, 2014, available at: http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf (last visited March 12, 2016).
- 99.
See 2015 Special 301 Report, April 2015, available at: https://ustr.gov/sites/default/files/2015-Special-301-Report-FINAL.pdf (Last visited March 12, 2016).
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Nandini, C.P. (2017). Criminalization of Copyrights Infringements in the Digital Era with Special Reference to India. In: Sinha, M., Mahalwar, V. (eds) Copyright Law in the Digital World. Springer, Singapore. https://doi.org/10.1007/978-981-10-3984-3_14
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