DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY,
LUCKNOW

SUBJECT: IPR LAW AND INFORMATION TECHNOLOGY

TOPIC: IMPACT OF INTERNET ON IPR LAW: ANALYSIS COPYRIGHT
(AMENDMENT)ACT, 2012

SUBMITTED TO:

SUBMITTED BY:

MR.AMANDEEP SINGH

NIHARIKA

PROFESSOR OF LAW

X-SEM
ROLL NO.77

INTRODUCTION
Copyright law operates as a functional solution in a technologically backward environment.
However, with the advent of computers and the internet, the physical limitations preventing
copying of works have been largely overcome, and granting copyright protection to data over the
internet has become somewhat meaningless owing to the ease with which material can be
accessed and copied from any corner of the world at literally no cost to the end-user.
The protection of copyright and related rights covers a wide array of human creativity. Much of
the creative content that fuels electronic commerce is subject to such protection. Under the most
important international copyright convention, the Berne Convention, copyright protection covers
all literary and artistic works. This term encompasses diverse forms of creativity, such as
writings, both fiction and non-fiction, including scientific and technical texts and computer
programs; databases that are original due to the selection or arrangement of their contents;
musical works; audiovisual works; works of fine art, including drawings and paintings; and
photographs. Related rights protect the contributions of others who add value in the presentation
of literary and artistic works to the public: performing artists, such as actors, dancers, singers and
musicians; the producers of phonograms, including CDs; and broadcasting organizations.
Digital technology enables the transmission and use of all of these protected materials in digital
form over interactive networks. The process of digitization allows the conversion of such
materials into binary form, which can be transmitted across the Internet, and then re-distributed,
copied and stored in perfect digital form. While the transmission of text, sound, images and
computer programs over the Internet is already commonplace, this is also becoming true for
transmission of audiovisual works such as feature films, as the technical constraints of narrow
bandwidth begin to disappear. Materials protected by copyright and related rights, spanning the
range of information and entertainment products, constitute much of the valuable subject matter
of e-commerce. Thus, with the advancement of information technology, copying, modifying, and
distributing of copyrighted materials has become very simple and difficult to trace.
The 1980s and 1990s saw the digital revolution sweeping the world and the advent of internet
over the World Wide Web. The global community responded to the challenges posed to the
copyright system by the internet through two treaties framed in 1996, called WIPO Copyright

Treaty(WCT) and WIPO Performances and Phonograms Treaty (WPPT), together known as the
Internet Treaties. The treaties address the challenges relevant to the dissemination of protected
material over digital networks such as the Internet. The WCT deals with the protection for the
authors of literary and artistic works. The WPPT extends copyright like protection to performers
and producers of phonograms. Many provisions in these treaties like right of communication to
the public have been available in the Indian copyright law since the 1994 amendment.
The Copyright (Amendment) Act, 2012 introduced amendments to harmonize the Copyright Act,
1957 with WCT and WPPT. The amendment Act goes much beyond the Internet treaties and has
introduced many changes in the Copyright Act, 1957. The amendments introduced through
Copyright (Amendment) Act 2012 can be categorized into:
1. Amendments to rights in artistic works, cinematograph films and sound recordings,
2. WCT and WPPT related amendment to rights,
3. Author-friendly amendments on mode of Assignment and Licenses,
4. Amendments facilitating Access to Works,
5. Strengthening enforcement and protecting against Internet piracy,
6. Reform of Copyright Board and other minor amendments.
STATEMENT OF PROBLEM
With the advancement of information technology, copying, modifying, and distributing of
copyrighted materials has become very simple and difficult to trace. In such a situation
enactment of Copyright (Amendment) Act, 2012 has come as a silver lining. But at the same
time it is facing heavy criticisms about not covering certain areas or some are alleging its
provisions to be unconstitutional. The study will focus on its utility.
SIGNIFICANCE OF STUDY
Study is significant as it focuses on violation of IPR in cyberspace and how IPR law has been
amended to cover online infringement of copyrighted works. The study also intends to find if any
separate legislation on the issue is required or not.

PLAN OF STUDY
The study aims to start with an introduction as to impact of internet on IP Law. The project will
further deal with the Copyright (amendment) Act, 2012 and the changes brought by this Act.
After that an analysis will be made with regard to the relevance of the Act in online infringement
disputes. The project will also look into the liability of the internet intermediaries.
LITERATURE REVIEW
1. Arul George Scaria, Does India need digital rights management provision or better
digital business management strategies [2012] JIPR vol. 17, pp 463-477
This article deals with the digital rights management provisions introduced by the Copyright
(Amendment) Act 2012. A comparative analysis of the new DRM provisions with similar
legislation in the U.S and the EU has been made. It has been observed by the author that there is
a need to better digital business management strategies and better enforcement of the rights
already guaranteed under the copyright law rather than adoption of the new DRM provisions
under the copyright law. This Article was helpful since it provided an insight of the DRM
provisions as incorporated in the US and EU legislations.
2. Zakir Thomas, Overview of changes to the Indian Copyright Law [2012] JIPR vol. 17,
pp 324-334
This article deals with the Copyright Amendment Act, 2012 that has been
enacted by the Government of India bringing changes to the Copyright Act,
1957. The article elaborates that the amendments has made the Indian
copyright law compliant with the Internet Treaties, WIPO Copyright Treaty
(WCT) and WIPO Performances and Phonograms Treaty (WPPT). It further
deals with the various provisions of the amendment Act that grant
performers rights to performers. The article further provides that while

introducing technological protection measures, the law ensures that fair use
survives in the digital era by providing special fair use provisions. The article
further mentions that the amendment Act has gone beyond the limited
mandate of WCT and WPPT and made many author friendly amendments to
streamline business practices, special provisions for disabled, amendments
facilitating access to works and other amendments to streamline copyright
administration. This Article was helpful since it provided for the list of
changes brought by the Copyright (Amendment) Act 2012.
3. Aditya Gupta, The Scope Of Online Service Providers Liability For Copyright
Infringing Third Party Content Under The Indian Laws-The Road Ahead [2010] JIPR
vol. 15, pp35-35
This article talks about the issue of liability of online service providers (OSPs) for third party
content and observes that it is one of the most contentious issues in the realm of cyber law.
Different jurisdictions around the world have dealt with the issue either through legislative
provisions or judicial pronouncements. Until recently, the legal position in India was nebulous
and vague especially with respect to liability for copyright infringing third party content. The
Information Technology (Amendment) Act, 2008 has significantly clarified the scope of
immunities available to intermediaries. Unlike the immunities under the old IT Act, these
immunities are not only available with respect to offences under the IT Act, 2000 but even for
the liabilities arising under any law. The object of the article was to extensively examine
applicability and scope of such immunities, by comparatively analysing them with similar
provisions in the United States and the European Union.
The article has further examined the scope of OSPs liability under the Copyright Act, 1957 under
three heads viz. direct liability, secondary liability and criminal liability. The potency of the
argument that OSP authorize infringement has been examined by the courts in the UK, Canada
and Australia. This article has examined the accuracy of the argument and its applicability in the
Indian context.

The article was helpful as it provided with an overview of the position likely to emerge under the
Indian law.
4. Prashant Reddy T., The Background Score To The Copyright (Amendment) Act, 2012
[2012] NUJS L. Rev. 469
The article talks about the importance of enactment of Copyright (Amendment) Act, 2012 by
elaborating that this Act of 2012 stands to correct the legislative imbalance of rights assigned to
composers and lyricists and is a path-breaking remedy for copyright regime in India. The buildup to the Amendment demonstrates the undying efforts of the otherwise passive composers and
lyricists. In order to understand the context of the amendment and the manner in which these
new provisions are likely to be interpreted by courts.
This Article was helpful as it provided the whole background under which the Copyright
(Amendment) Act, 2012 was enacted.
5. Nandita Saikia, ISP/OSP Safe Harbours and Takedown Laws: Copyright and
Information Technology (Indian Copyright, 15th June 2012)
<http://copyright.lawmatters.in/2012/06/safe-harbour-for-osps-and-isps-in2012.html>last
accessed on 23rd March 2014,
This article observes the changes brought by the Copyright (Amendment) Act, 2012. This article
says that the 2012 amendments has introduced for the first time, what could be considered to be
safe harbour provisions, for the benefit of intermediaries, into the Indian Copyright Act, 1957. It
has further observed that these provisions have not specifically been referred to as safe harbours
although it is anticipated that that is precisely what they will be - possibly with Section 52(1)(b)
of the (amended) Copyright Act applying to ISPs and Section 52(1)(c) applying to OSPs. As
such, their provisions are a fairly radical departure from the law in force prior to the coming into
force of the Copyright (Amendment) Act, 2012 (i.e. the earlier law).
This is not so much because the earlier law completely failed to grant any protection to
intermediaries in cases of secondary copyright infringement - possibly occurring by the upload
of infringing user generated content on to the websites of intermediaries without their knowledge
-but because the accordance of protection to intermediaries involved considerable interpretative
legerdemain as far as the copyright statute was concerned, and courts were not always entirely
sympathetic to intermediaries. In fact, in the decision pronounced on July 29, 2011, in Super

Cassettes Industries Ltd. v. MySpace Inc. & Another 1, a Single Judge of the Delhi High Court
went so far as to suggest that intermediaries screen all user generated content to check for
infringement prior to making the content available online.
This article was helpful as it dealt with the safe harbor provisions as introduced by the Copyright
(amendment) Act, 2012 in detail.
6. Dr. Kalyan Kankanala, Salient Features of the Copyright (Amendment) Act, 2012
(Sinapse Blog , 15th June 2012) < http://www.bananaip.com/sinapse-blog/2012/06/salientfeatures-of-copyright-amendment-2.html>, last accessed on 23rd March 2014,
This article has exhaustively provided for the list of amendments that has been made and also
step by step elaborates and compares the provisions under the 1957 Act and 2012 Act.
7. Abhai Pandey, Inside Views: Development In Indian IP Law: The Copyright
(Amendment) Act, 2012 (Intellectual Property Watch, 22nd January 2013) <
http://www.ip-watch.org/2013/01/22/development-in-indian-ip-law-the-copyrightamendment-act-2012/> last accessed on 23rd March 2014,
This article deals with the various provisions of the Copyright (Amendment) Act, 2012. It further
deals with the lacunae and shortcomings in the Act. It has provided a detailed examination of the
changes which can be appreciated and which are worrisome.
STATEMENT OF PURPOSE
Purpose of the study is to examine the changes made to the Copyright Act, 1957 in order to
harmonize it with WCT and WPPT which are together known as internet treaties.
AIMS AND OBJECTIVES:
1. To study the copyright infringement in cyberspace,
2. To study WPPT and WCT related amendments made by the Copyright(Amendment) Act,
2012,
3. To study the amendments made in regard of strengthening enforcement and protecting
against internet piracy,
1 IA Nos.15781/2008 & 3085/2009 in CS (OS) No. 2682/2008.

4. To study about protection of technological measures,

5. To study about digital rights management information.
RESEARCH QUESTIONS
1.
2.
3.
4.
5.

What was the need to bring amendments to the existing Copyright Act, 1957?
What is the impact of internet and digitization on the Copyright Act, 1957?
What are the provisions of the Copyright (Amendment) Act, 1957?
What areas have been covered by the Copyright (Amendment) Act, 1957?
What is the lacuna or shortcomings in the Copyright (Amendment) Act, 1957?

RESEARCH METHOD: Doctrinal.

SCOPE OF LIMITATION: The study is limited to the extensive study of provisions of
Copyright (Amendment) Act, 2012 related to digitization and compliance to internet treaties.
TENTATIVE CHAPTERISATION
1. BACKGROUND
2. INTRODUCTION
3. DETAILED EXAMINATION OF CHANGES MADE BY THE COPYRIGHT
(AMENDMENT) ACT, 2012
I.
Rights In Artistic Works, Cinematograph Films And Sound Recordings
II.
WPPT AND WCT RELATED AMENDMENTS
a. Performers Rights
b. Performers Right of Communication to Public
c. Moral Rights to Performers
III.
TERM OF COPYRIGHT OF PHOTOGRAPHS
IV. STREAMLINING BUSINESS PRACTICES
a. Assignment of Rights
b. Mode of Licenses by Owners of Copyright
V. FACILITATING ACCESS TO WORKS
a. Compulsory Licenses
VI.
STATUTORY LICENCES
a. For Cover Versions
b. For Broadcasters
VII.
ADMINISTRATION OF COPYRIGHT
a. Administration of Copyright Societies
b. Tariff Scheme of Copyright Societies
VIII.
FAIR USE PROVISIONS
a. Fair Use in Digital Works
b. Notice and Take Down Procedures
IX.
SPECIAL PROVISIONS FOR ACCESS TO THE DISABLED
a. Compulsory License for the Disabled

X.
XI.

b. Fair Use Rights for the Disabled

EASIER RELINQUISHMENT OF COPYRIGHT
STRENGTHENING ENFORCEMENT AND

PROTECTING

AGAINST

INTERNET PIRACY
a. Strengthening of Border Measures
XII.
PROTECTION OF TECHNOLOGICAL MEASURES
XIII.
DIGITAL RIGHTS MANAGEMENT INFORMATION
XIV. ADMINISTRATIVE AND OTHER AMENDMENTS
4. CHANGES TO BE APPRECIATED
5. CHANGES WHICH MAYBE WORRISOME
6. MISSED OPPORTUNITIES
7. INFORMATION TECHNOLOGY LAW
8. CONCLUSION
9. BIBLIOGRAPHY
BIBLIOGRAPHY
Primary Sources
Books
1. Litman Jessica, Digital Copyright (Prometheus books, 2006),
2. Fitzgerald Brian, Copyright law, digitial content and the internet in the Asia-Pacific
(Sydney University Press, 2008),
3. Smith Graham, Internet Law and Regulation (4th edn, Sweet & Maxwell, 2007),
4. Stamatoudi Irini, Copyright Enforcement and the Internet (Kluwer Law International,
2010),
5. Bowrey Kathy, Law and Internet Cultures ( Cambridge University Press, 2005),
6. Rosenoer Jonathan, Cyberlaw: The Law Of The Internet (Springer-Verlag New York, Inc,
1997).
Secondary Sources
7. Arul George Scaria, Does India need digital rights management provision or better
digital business management strategies [2012] JIPR vol. 17, pp 463-477
8. Zakir Thomas, Overview of changes to the Indian Copyright Law [2012] JIPR vol. 17,
pp 324-334
9. Sunil Abraham, Copyright amendment: bad, but could have been much worse Business
standard (10th June 2012) <http://www.business-standard.com/article/opinion/sunil-

abraham-copyright-amendment-bad-but-could-have-been-much-worse112061000027_1.html> last accessed on 21st march 2014

10. Nandita Saikia, OSP/ISP liability and the Copyright (Amendment) Bill ( Indian
Copyright, 1st July 2012) <http://copyright.lawmatters.in/2010/07/osp-isp-liability-andcopyright.html> last accessed on 21st March 2014
11. Nandita Saikia, ISP/OSP Safe Harbours and Takedown Laws: Copyright and
Information

Technology

(Indian

Copyright,

15th

June

2012)

<http://copyright.lawmatters.in/2012/06/safe-harbour-for-osps-and-isps-in-2012.html>
last accessed on 21st March 2014
12. Nandita Saikia, ISP Liability and
Recommendations

(Indian

the

Parliamentary Standing

Copyright,

28th

Committee's

November

2010)

<http://copyright.lawmatters.in/2010/11/isp-liability-and-parliamentary.html>

last

accessed on 21st March 2014

13. Nandita Saikia, ISP/OSP Safe Harbours and Takedown Laws: Copyright and
Information

Technology

(Indian

Copyright,

15th

June

2012)

<http://copyright.lawmatters.in/2012_06_01_archive.html> last accessed on 21st March

2014