NATIONAL CONFERENCE ON

TRANSFORMING DIMENSION OF IPR:

CHALLENGES FOR THE NEW AGE
LIBRARIES

COPYRIGHT IN CYBERSPACE

By:-
INDRAJIT MITRA1

1
B.Sc. LL.B. (IPR Hons.), 7th Sem. KIIT SCHOOL OF LAW, KIIT UNIVERSITY,
BHUBANESWAR, ODISHA- 751024. Mob- 09438173993. Mail id- imitrakls31@gmail.com
As Mr. Justice Peterson said in University of London Press Ltd v University Tutorial Press Ltd 2
“…what is worth copying is prima facie worth protecting.”

ABSTRACT

This paper focuses on the vulnerability of copyrighted works in the cyberspace and the violation
of moral rights of the authors due to such violations. Infringement of copyright in cyberspace is
considered more severe because here the “pirates” are invisible and can easily hide their identity.
Movies, books, songs, images and any other sort of copyrighted work can be copied and
reproduced and sold by these pirates online. This paper also refers to famous case studies like The
Viacom Litigation and several other cases. There are various methods like Electronic Copyright
Management Systems, Digital Millennium Copyright Act 1998 (DMCA), etc. that can be
implemented by various nations to stop infringement of copyright in cyberspace. The need for
protection is urgent and the recent shutting down of The Pirate Bay shows that the nations have
started realising the importance of copyright works and the need for their protection. These
activities need to be wiped down totally because the money generated through these activities can
be used to fund terrorist organizations worldwide and then it will become more cumbersome for
the government to control these activities.

Keywords- Computer programme, cyberspace, piracy, e-commerce, IT Act, 2000.

INTRODUCTION

Information Technology is growing faster than any other communication medium. Invention of
digital technology was the most important revolution in the last century. The influence of digital
technology on information technology is phenomenal and indispensable. This era has witnessed a
new culture of internet. It is changing our lifestyle and way of doing business from traditional
commerce to e-commerce. Originally it was confined to military establishments. Today Internet is
not only used for educational purposes but also for businesses because of its speed, creativity,
flexibility and tremendous potential to disseminate information beyond the geographical
boundaries.

According to the Copyright Act, 1957, copyright is a negative and monopoly right which enables
the author of the work to prevent others to exercise that right which has been conferred on him.
The author is the exclusive owner of his creation. The precise text to determine whether a person
is entitled to copyright is to ascertain whether skill, judgment and experience or labor, and capital
have been expended in creating the work.

The key business of the Internet is computer .It is the largest and the most efficient distribution
mechanism that has existed to date and at the same time it plays host to the largest number of
piracy websites, from where one can download software.

2
[1916] 2 Ch 601
 WHY IS COPYRIGHT SO VULNERABLE TO INFRINGEMENT ON THE INTERNET?

The relationship between the Internet and Copyright law is complicated. The internet is an
international system for the transmission and reproduction of material, much of which is protected
by Copyright. It therefore presents unforeseen possibilities for copyright infringement and many
challenges for copyright law.
While previously access to technology served as a barrier to copying by the general public, with
new technologies, the average person was suddenly photocopying articles, taping albums,
recording their favorite television shows. And what do you know? Copyright is still alive and
thriving, and the entertainment industries are as powerful as ever. The courts have shown very
little sympathy for plagiarists, and have frequently showed that copyright law ought to be
interpreted in such a manner so as to protect the interest of the copyright owner3. Another
important danger regarding digital media is the ease of transmission and multiple use. So now that
you have a copy of this paper on your hard drive, maybe you want to send it to one of your
friends. No problem, you can e-mail it right over to him. Similarly, if you had a book, you could
let him borrow it; this is not prohibited by the copyright statute. Once the book is yours, you can
do what you want with that copy of it and this is what is known as the "first sale" doctrine. You
can even resell it without infringing on the copyright. In other words, you still have a copy of it
on your hard drive and now so does he. There are two copies where once there was only one.

Cyberspace is a living organism, constantly changing, as more information is uploaded,

downloaded and as more people join the pioneers of this brave new world. Our laws have yet to
catch up with it. This is not necessarily a bad thing; the law tends to lag behind social changes, but
then resolves itself accordingly as the society feels the need for it. Change is the only thing that is
constant in this world. Similarly cyberspace is expanding at a huge rate as more people enter into
it to explore the depth of knowledge that are fathoms deep.

COPYRIGHT INFRINGEMENT

Copyright in a work is infringed when the work is copied without the consent of the copyright
owner .In case of infringement, it must be established that the defendant has copied the plaintiff
form of expression and not his ideas. A copyright law deals with the form in which the work is
expressed .It doesn’t monopolies the idea of information. Thus computer programme, the
expression is protected .This includes not only the code lines of the programme but also the
structure. Underlying ideas and principles are not protected by copyrights.

3
David Bainbridge, Intellectual Property (3rd Ed.) 1996 p 19.
 CASE STUDIES

Viacom Int’l Inc. v. YouTube, Inc.4 also famously known as the VIACOM Litigation.
On March, 2010 VIACOM Inc. a major entertainment content company, who holds the major
entertainment sectors brought down landmark litigation against GOOGLE, a famous search engine
and YOUTUBE which is a subsidiary of GOOGLE. In the year 2007, episodes of SpongeBob
Squarepants, shown on Nickelodeon (a subsidiary of Viacom Inc.) were displayed on YOUTUBE
which is a video sharing site. Though there was a content- sharing agreement between Viacom and
Youtube but negotiations broke down in 2007.5 Viacom’s allegations against Google and
YouTube for direct and secondary infringement came as a result of the regular distribution and
viewing by YouTube users of copyright-protected materials.6 In particular, Viacom alleged that
tens of thousands of video clips sponsored on the YouTube platform infringed Viacom’s
copyrights.7 The Second Circuit Court held Google and YouTube liable for the deliberate act and
held them liable.

In Kelly v Arriba SoftCorp8, Leslie Kelly’s copyrighted pictures were displayed by a search
engine that not only produced thumbnails but also displayed large size pictures in its search
results. This was held by the court to be an unauthorized reproduction of plaintiff’s images that
directly infringed copyright of the plaintiff. While creating only thumbnails could be justified as
fair use, but downloading from search engine the resultant full size image amounted to an
infringement.

In Microsoft Corporation v Yogesh Popat9, the Delhi High Court dealt with a copyright
infringement case and awarded compensation to the tune of Rs 23.62 lacs to Microsoft
Corporation against M/s Compton Computers Private ltd and its directors for uploading pirated
software of Microsoft in computers that the company sold after assembling parts.

In Syed Asifuddin and Ors v. The State of Andhra Pradesh & Anr. 10, the Tata Indicom
employees were accused and arrested for charges of hacking a computer source code under
Section 65 of the IT Act,2000 for altering the electronic 32 bit number encryption (ESN)
programmed into cell phones that were to be exclusively used only on Reliance
telecommunication service network. The court observed that such tampering of code is a
punishable offence under Section 65 of IT Act. The court observed that in view of Section 2(o),
(ffc), section 13 and 14 computer programme is a literary work protected by copyright and
according to Section 63 any infringement of computer programme is punishable. However, the
court observed that this issue will be decided by the trial court after evidence is led before trial
court. The author is however of the view that such tampering will not be considered fair use under

4
718 F. Supp. 2d 514, 518-19 (S.D.N.Y. 2010),
5
Viacom v. YouTube, WEBSITE COPYRIGHT,
http://www.benedict.com/Digital/Internet/YouTube/YouTube.aspx (last visited Aug. 12,2012).
6
See Larry Neumeister, Viacom Alleges YouTube Copyright Infringement, USA TODAY,
(May 27, 2008, 8:16 AM), http://www.usatoday.com/tech/news/techpolicy/2008-05-27-viacom-
youtube-lawsuit_N.htm.
7
Viacom Int’l Inc., 718 F. Supp. 2d at 518.
8
280 F 3d 934(9th Cir 2002).
9
2005 (118)DLT 580, followed in Adobe Systems inc v K.Khanna 2009 (5) AS ( Delhi) 954.
10
2005 CRLJ 4314.
Section 52 of The Copyright Act 1957 as it was not reverse engineered for any of the exceptions
mentioned in Section 65A of the Copyright Amendment Act, 2012.

HOW TO PREVENT THIS INFRINGEMENT?

Electronic Copyright Management Systems- ECMS, that is, technology that is deployed to
enable copyright owners to track, manage or prevent copying of their digital work, such
as the digital watermarking system. One type of ECMS is the easy, but widely used
practice of digital watermarking. This is a technique whereby encrypted information is
incorporated into a digitized work, and if some alteration of the work is effected which cannot be
visible to the naked eye, and surfer may be unable to change the alteration. This system allows the
copyright owner to track and identify unauthorised copies made of the original work. These
unauthorised copies can be detected by sending out ‘robots’ to probe through content of web
pages. If an infringing copy is found, the copyright owner might require the ISP on whose server it
is located, to remove that copy.

Digital Millennium Copyright Act 1998 (DMCA)-In the US, protection for ECMS was first
mooted in the Report of the Working Group on Intellectual Property Rights as part of the National
Information Infrastructure Task Force (NII Report). In response to the concerns of users who
argued that such protection might inhibit access to materials in the public domain, the NII
Committee considered that while technological protection may be applied to copies of works in
the public domain, such protection attaches only to those particular copies, and not to the
underlying work itself11. Therefore protection against circumvention of ECMS was justified
because it was not the work per se that was the subject of protection.

Stronger Legislations-Currently there are no strict laws that can make the person liable to face
harsh punishments or to deter others from committing such offences in future. The existing laws
are not in accordance with the developments that have taken place in cyberspace.

11
http://web.sfc.keio.ac.jp/~naemura/IPRP/nii_ipr.html (visited 28th March, 2014).
CONCLUSION

From the foregoing discussions it can be concluded that the advent of the Internet is a serious
concern in the field of intellectual property rights. The infringement of IP rights over internet is
common now a day. The present Indian Legislation on cyber Law does not have sufficient
provision to tackle with problems relating to IPR and cyberspace. So there is a need of specific
provisions which regulate IP rights in Cyberspace.

Internet has helped people in many ways. It is the best and fastest way to share your works with
anyone worldwide. People have been using internet widely to gain publicity in a very short span of
time. But it is the duty of the law authorities to see that no one’s work gets infringed by other.
Because according to the Lockean Labour Theory everyone should be reasonable acknowledged
and reimbursed for their work and it is the responsibility of the state to protect these works.

On 9th December, 2014 thepiratebay.se which is an online entertainment content sharing site was
raided by Swedish Police and shutdown12 permanently because it violated various copyrighted
contents by putting them online for public viewing without the permission of the authors. The
action taken by Swedish police should be applauded and followed as an example by other nations
to stop such online content sharing sites that infringe and violate rights of the authors and owners.
Though it is a small step but it shows the dawn of the era of strict action against such “pirates”.

The Electronic Copyright Management System (ECMS) has helped to some extent in protecting
these works on the internet. But still stronger legislations are needed to stop these infringements.
Only stronger laws can ensure that people don’t illegally reproduce or use other’s work. Stronger
punishments and heavy penalties have to be imposed that no one commits such act in future.

12
http://www.extremetech.com/gaming/195647-the-pirate-bay-raided-shut-down-by-swedish-
police-and-it-may-never-return (Site last visited on 15th Dec., 2014 at 8:30 pm IST)
 REFERENCES

1. CYBER CRIME IN INDIA, Dr. M. Dasgupta, Eastern Law House, 2009.

2. LAW OF COPYRIGHT AND NEIGHBOURING RIGHT: NATIONAL AND

INTERNATIONAL PERSPECTIVES, Dr. V. K. Ahuja, Lexis Nexis Butterworths, 2007.

3. INTELLECTUAL PROPERTY LAW, P. Narayanan, 3rd Edition, Eastern Law House, 2007.

4. INTELLECTUAL PROPERTY RIGHTS IN INDIA, V.K. Ahuja, Vol. 1, Lexis Nexis

Butterworths, 2012.

5. http://web.sfc.keio.ac.

6. http://www.benedict.com

7. http://www.extremetech.com

8. http://www.karnikaseth.com