INTELLECTUAL PROPERTY LAW

A PROJECT ON:

DIGITAL RIGHTS MANAGEMENT AND COPYRIGHT IN INDIA

SUBMITTED
BY
RUPESH CHOUDHARY
PRN: 16010324357
BB.A. LL. B
DIVISION - “D”
BATCH-2016-2021
ON OCTOBER 2019

UNDER THE GUIDANCE OF

Prof. DHANIYA K. A

SYMBIOSIS LAW SCHOOL, HYDERABAD

SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY), PUNE

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 CERTIFICATE

The project entitled “DIGITAL RIGHTS MANAGEMENT AND COPYRIGHT IN INDIA”

submitted to the Symbiosis Law School, Hyderabad for Intellectual Property Law as part of
Internal assessment is based on my original work carried out under the guidance of Prof.
Dhaniya K. A. The research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.
I understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidate

Rupesh choudhary

Date: October 2019

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 ACKNOWLEDGEMENTS

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere
thanks to all of them.

I am highly indebted to Prof. Dhaniya K. A for their guidance and constant supervision as
well as for providing necessary information regarding the project & also for their support in
completing the project.

I would like to express my gratitude towards my parents & members of Symbiosis Law School,
Hyderabad especially the Librarian for their kind co-operation and encouragement which help
me in completion of this project.

I would like to express my special gratitude and thanks to faculty members of the institution
for giving me such attention and time.

My thanks and appreciations also go to my colleague in developing the project and people who
have willingly helped me out with their ability.

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 INDEX

S. No. TOPIC PAGE

NO.

1 Introduction 5

2 Functioning of DRMs 5

3 DRM and Infringement of Copyright on Internet 8

4 Digital Challenges to Copyrighted Work 9

5 Legal Provisions Related to Digital Rights 10

Management

6 Suggestions and Recommendations 11

7 Conclusion 12

8 Bibliography 13

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Introduction
Digital rights management (DRM) is a term which refers to several technologies that are
utilized by software and hardware manufacturers, publishers, copyright holders, and
individuals with the intent to control the use of digital content. Digital rights management
includes tools that control the utilization, alteration, and distribution of copyrighted works, as
well as systems within devices that enforce these policies. The Copyright (Amendment) Act
2012 has introduced Digital Rights Management (DRM) provisions in the Indian Copyright
law. The DRM provisions were introduced with the main objective of aiding India’s
membership in the WIPO Copyright Treaty (WCT) and the WIPO Performers and Phonograms
Treaty (WPPT). While the drafters of the new provisions appear to be under the firm belief that
harmonization of the Indian Copyright law with the two WIPO Internet treaties is needed and
desired for India to extend adequate protection for copyrighted material in digital India”

In simple words management of copyrights on the internet is known as Digital Rights

Management. Digital Rights Management is a technology intended to track and copy protect
digital copyright content; contains Secure Distribution mechanisms which generally use
Encryption and Digital Watermarks. DRM typically controls the misuse of content by ‘meta
tagging’ content with the relevant license rights prior to the content being encrypted. It can
only be unlocked by a user who has access to the necessary decryption technology and used
within the permitted usage rules. Copyright is a form of intellectual property protection granted
under Indian law to the creators of original works of authorship such as literary works dramatic,
musical and artistic works, cinematographic films and sound recordings.

Copyright holders are permissible to use DRM to protect their copyrighted work being
reproduced or used by others. However, copyright laws across the world allow fair use of the
copyrighted work. Impartial use essentially means using the copyrighted work for as part of or
for the purposes of a commentary, search engines, criticism, parody, news reporting, research,
teaching, library archiving and scholarship etc.

Functioning of DRMs
DRM works on the format of a prior contractual relationship where the copyright holder
controls the usage of the work even after it has been accessed by the user. It controls the number
of copies that can be made, specifies the alterations allowed and how much of the work can be

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accessed, after its sale to the user. DRMs are a business management model based on a
contractual relationship, and serve the interests of the creator or the facilitator of digital content.
They can range from mere content copy regulation to full-fledged management schemes
regulating each action in the transaction, all in an encrypted fashion. The material to be
accessed can be decrypted through special knowledge which may be acquired by performing
certain authorized actions. Some mechanisms supervise and regulate the number of copies that
can be made. The machine readable information coded in Rights Expression Languages (REL)1
is used to control permissions which restrict access and use for certain periods and for certain
users as well as influence the quality of the work accessible. DRMs are widely used in e-books,
video games, computer software, mobiles etc., and work quite well.

DRM technology does two distinct tasks. First, it recognises digital versions of copyrighted
works, just as International Book Standard Numbers (ISBN) identify hardcopy books. Digitally
identifiable versions of copyrighted works are generally created through two well-accepted
existing technologies which are “watermarking” and “fingerprinting”. The identification
function tracks works electronically, such as when they are transmitted over basic peer-to peer
networks in the form of email or instant message attachments. Second, DRM software may
also provide copyright owners with control over the various excludable rights of copyrights
ownership, including access to their works and the ability to make copies of and redistribute
the works.

Following are the DRM architecture widely used are:

1. Digital Watermarking

2. Fingerprinting

3. Digital signature

1. Digital watermarking

Digital watermarking is the act of hiding a message related to a digital signal within the signal
itself. The added watermarks help in identify if the data is copyright protected, and also in

1
Dhagga, A. (2019). Digital Rights Management & Its Interaction with Net Neutrality - Intellectual Property -
India. [online] Mondaq.com. Available at:
http://www.mondaq.com/india/x/597256/Copyright/Digital+Rights+Management+Its+Interaction+With+Net+
Neutrality [Accessed 3 Oct. 2019].

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owner identification. Digital watermarking technique is helpful for density of the products. The
watermark embedded in a digital work can be utilized to record one or more transactions taking
place in the past of a copy of the work. For example, watermarking could be used to record the
receiver of every legal copy of a movie by embedding a dissimilar watermark in all copy. If
the movie is then leaked online, the source of the leakage could be recognised through the
unique embedded watermark

2. Fingerprinting.

Fingerprinting or “content-based identification technologies” function by putting out the

features of a file and storing them in a database. When the technology is accessible with an
unknown file, the features of that file are calculated and matched against those stored in the
database, in an attempt to find a match. If a match is found, the system will return the
appropriate metadata from the fingerprint database. Fingerprints are highly effective with
certain content types, but less equipped to aid the unique identification and greatly depends on
the “detail” they provide. Hence fingerprints are suitable for audio, video and audio-visual
content as well as photographs but less for computer graphics and text.2

3. Digital Signatures

A digital signature offers information about the source of a piece of information and knowledge
about whether the information has been modified or not. Digital Signatures similar to hand
written signatures which can be used to control the access to digital content. It is significant to
see that information related with content (e.g., IDs and rights expressions) can be trusted. Such
functionality can be attained when the party adding the metadata:

a) digitally signs the metadata, and

b) is known to be authorized to add the metadata.

2
Sacha Wunsch-Vincent, 'The economics of copyright and the internet: Moving to an empirical assessment
relevant in the digital age' Economic Research Working Paper No.9, WIPO Economics and Statistics Series, (July
2013).

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DRM and Infringement of Copyright on Internet

Copyright infringement in a work is infringed by a person who, without the license of the
copyright owner, does, or allows another to do, any of the act prohibited by copyright. The
internet group believes that access to the copyrighted work should be world-wide and sharing
should be free. Whereas, the copyright owning community believes that permission to use
copyrighted work should be controlled and replication should be paid for. Infringement of
copyright on the internet occurred either by unawareness or deliberately. In a tangible medium,
it is easy to decide whether a ‘copy’ of a protected work has been made, or whether
infringement of any of the exclusive rights of the copyright owner has happened. However, in
the digital atmosphere, it is a question whether data transferred through the several means of
the networks including the World Wide Web (www) is ‘copied’ for the purpose of copyright
law. Even if one assumes that a ‘copy’ has been made, determining where that copy truly exist
in the network may prove very difficult. Thus, deciding that whether the copy has been made
and exists in digital form somewhere on the computer network, it may be considered that the
digital copy is an infringing copy of the original copy and thus the private rights of the
copyrights owner have been violated. The Indian courts have held in Garware Plastic and
Polyster Ltd. v. Telelink relating to the showing of video films over a cable network that such
an action amounts to broadcasting or communicating it to a sector of public. The Hon’ble
Supreme Court also held that such broadcasting of the programme directly affected the incomes
of the author and infringed his intellectual property rights. The case also held that assisting in
infringement would amount to the infringement of copyright.

Copyright infringement in Internet maybe categorized as follows:

(i) Posting or uploading of materials on the website

(ii) Linking

(iii) Framing

(iv) Caching

(v) Archiving

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Digital Challenges to Copyrighted Work

Digital technology imposes a number of challenges to copyright. The two most important
features are first the digitalisation of copyright works and second, the development of networks
such as the internet which permit the quick global broadcast of digital information.

Challenges posed by digital technology to management of copyright in a digital environment:

1. Ease of duplication – the technology used to make and view a digital work can be
utilized to make multiple exact copies of such work.

2. Ease of transmission and multiple use – networked computers possibly enable the
widespread piracy of copyrighted works. The continuing growth and implementation of
wide bandwidth installed and mobile networks to provide content rich ‘multimedia’
works facilitate this further.

3. Plasticity of digital media – users can easily modify, enhance or adapt works in digital
form.

4. Equivalence of works in digital form – all works look the same once in code, which
means it is very easy to merge digital works into new products such as ‘multimedia’.
This is also a feature of convergence- the mixture of media, technology and cable
services, networks in areas such as the internet, digital broadcasting and so on.

5. Compactness of works in digital form – a few CD-ROMS has a capability to store a

whole library; this aspects also helps in the creation of new works or collections of
printed and graphic materials.

6. No human author – the digital work may be computer created as different to being
created with the aid of a human; copyright law is embedded in the concept in a
recognisable, personal author.

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Legal Provisions Related to Digital Rights Management

The developing digital technologies and Internet have unlocked huge possibilities for copyright
owners to attract a far wider audience. But the digital technologies have also helped easier and
quicker unlicensed accessing and replication of copyrighted works, without any compromise
in their quality. In reaction to this rising threat and to make best use of the opportunities
delivered by the digital world, the DRM technologies came into existence. DRM technologies
allow the copyright owners to better control over their works by permitting users only the kinds
of access/ use permitted by the copyright owners. The World Intellectual Property Organisation
(WIPO) brought forward two Internet treaties in the year 1996, signifying the concerns of the
international community to this developing digital challenge. They are the WIPO Copyright
Treaty (WCT) and the WIPO Performers and Phonograms Treaty (WPPT).3 Article 11 of
WIPO Copyright Treaty and Article 18 of WIPO Performers and Phonograms Treaty obliges
parties to have ‘adequate and effective’ legal remedies to avoid the circumvention against
applied effectively technological protection measures, similarly Article 12 of WIPO Copyright
Treaty and Article 19 of WIPO Performers and Phonograms Treaty provides for contracting
parties to have suitable and quick legal remedies against the unlawful altering of rights
management information which is provided by the owner and also knowingly dealing with the
copies of tampered rights management information.

In India the Copyright Amendment Act, 2012 inserted certain DRM provisions in agreement
with the WIPO Cooperation Treaty (WCT) and WIPO Performers and Phonograms Treaty
(WPPT). India had constantly struggled becoming a contracting party to these TRIPS treaties,
however, the incorporation of digital regulatory provisions indicates a modification of position
.The two new provisions of DRM is being inserted in Copyright Act i.e. Section 65A and 65B,
the former dealing with protection against avoidance of technological measures and the latter
with protection of rights management information. According to the Section 65A (1) relating
to protection of technological measures, if “any person circumvents an effective (emphasis
added) technological measure used for the purpose of protecting any of the rights conferred
under the Copyright Act, with the intention (emphasis added) of infringing such rights, s/he
shall be punished with imprisonment which may extend up to two years and shall also be fined”.

3Shresth, P. (2019). Digital Rights Management provisions in Indian Copyright law. [online] Lexpress. Available
at: http://www.lexpress.in/law-development/digital-rights-management-provisions-and-indian-copyright-law
[Accessed 3 Oct. 2019].

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4
Clause 2(a) of section 65A also specifies that nothing in the provision shall prevent the doing
of anything referred to therein for the purpose that is not expressly prohibited by the Copyright
Act, 2012. Apart from this, the provision also provide certain exceptions of circumvention of
technological measures for the purpose of certain activities like encryption research, lawful
investigation, security testing of a computer system or a computer network with the approval
of the owner, protection of privacy and measures required in the interest of national security.
The Indian copyright law allows circumvention with the help of third parties provided certain
procedural conditions are satisfied. However, section 65A provides for a criminal penalty of
imprisonment for 2 years and a fine, for violation of this provision, which is a rather worrisome
development5

According to the Section 65B (i) of the copyright act provides “any person who knowingly
removes or alters the Rights Management information from the digital content or sells and
distributes the content knowing that the rights management information is tampered or
removed shall be penalised with 2 years of imprisonment and fine”. Similar punishments are
also prescribed for persons who distribute, import for distribution, broadcast or communicate
to the public, copies of any work or performance without authority, knowing that the rights
management information has been removed or altered without authority as per Section 65B(ii).
It does not provide for an exemption in the law for interfering or modifying with Rights
Management Information and also availing civil remedies along with criminal remedies shows
a harsher method.

Suggestions and Recommendations

According to the European commission DRMs are the online tools that recognise and describe
whether the digital content is protected by intellectual property rights. DRMs can be used to
enforce utilization rules set by right-holders or prescribed by law for digital content. They can
also help in legal copying and re-use of content by providing a safe atmosphere in which right
holders are salaried for private copying, online content is paid for, and unlawful replication is
prevented.

4
The copyright Amendment act 2012
5
Arul George Scaria, 'Does India Need Digital Rights Management Provisions or Better Digital Business
Management Strategies?' JIPR (September 2012) vol 17 pg 467.

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The DRM provisions fully ignore the public aspect of copyright and instead of attaining a
balance between competing claims, these provisions are biased towards copyright owners.
Copyrights owners seems united in its stand and much more economically viable than ordinary
Indian users of digital versions of copyrighted works and since the Amendment cannot be
challenged then in such a scenario, there must be an attempt to initiate a post-amendment
analysis of the effectiveness of the DRM provisions. Copyright law generally aims to balance
the interests of creators of content with those of the users of content by providing the latter
access to such content subject to certain restrictions and limitations.

In Indian law making scenario, economic analysis of law does not receive its due attention and
subjects like copyright law definitely required deep analysis, considering their far reaching
application in the society. The DRM provisions were introduced in India with a strong desire
to be a member in WIPO Copyright Treaties.

DRM and interoperability- open cross platforms DRM system and standards are not vital and
these standards must be raised. The misuse and unlawful file sharing of copyrighted content
must not be accepted, and consumers must be stimulated to use legitimate services and levies
on private copying to a system based on prevailing, exclusive copyrights supported by
technologies that guarantee a protected environment where such rights can be permitted and
enforced.

Conclusion
This study shows the essential for a careful review of the new DRM provisions under the Indian
copyright law. By including the DRM provisions in the Indian copyright law, without engaging
in due economic analysis as to their need as well as consequences, the proponents of the new
DRM provisions have risked a decrease in social welfare. The threat is further provoked by the
fact that the new legislation does not even provide a mandatory periodical review of the
working of those provisions. What is needed at this point of time is better implementation
of the rights already ensured to the copyright holders, rather than introduction of new
TRIPS+ standards. With better utilisation of current copyright remedies like doctrine of
contributory infringement, India can provide adequate protection for the right holders in the
digital world and guarantee that balance of the copyright system is not tampered. Such a method
would also provide incentives for the right holders to innovate better business management
strategies, taking into consideration the changing preferences and needs of consumers in a
digital world. DRM arrangements have gambled a decrease in social welfare. The risk is

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additionally exasperated by the reality that the new enactment doesn't give a required periodical
survey of the working of those arrangements. What is required now of time is better
requirement of the rights previously ensured to the copyright holders, instead of importation of
new principles.

The provisions regarding Digital Rights Management as inserted in the Copyright Act 1957
vide the 2012 Amendment are certainly an infringement of the fundamental right to speech and
expression as ensured by the Indian Constitution under Article 19(1)(a). Further, by not
supporting these provisions with a detailed study of the Indian market in relation to digital
piracy, the legislature has given the chance for challenging all these provisions in the court of
law. However, copyright laws across the world allow fair use of the copyrighted work. Impartial use
essentially means using the copyrighted work for as part of or for the purposes of a commentary, search
engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship etc.
Copyright law generally aims to maintain the balance between interest of creators of content
and the users of content by offering the latter the permission to use such content subject to
certain restrictions. However, when the exact law that should target for a balance restricts
fundamental freedom of speech and expression, it needs to be relooked. The policy drafters
and technology specialists should work in a team to link the gap in the pertaining law and also
for the development of the technology, so as to decrease the number of copyright violation
disputes. While the normative outlines may be unspecified, they can still direct the policy
creators in making practical choices that will reward innovative labour and encourage creativity
while avoiding further destruction of the intellectual commons.

Bibliography
1. Dhagga, A. (2019). Digital Rights Management & Its Interaction with Net Neutrality -
Intellectual Property - India. [online] Mondaq.com. Available at:
http://www.mondaq.com/india/x/597256/Copyright/Digital+Rights+Management+Its
+Interaction+With+Net+Neutrality [Accessed 3 Oct. 2019].
2. Ariyaratna, B. and Wijesinghe, W. (2018). Protecting Copyrights and Related Rights
in the Digital Dilemma: Some Challenges. Journal of Business Management and
Economic Research, 2(2), pp.44-55.

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 3. Shresth, P. (2019). Digital Rights Management provisions in Indian Copyright law.
[online] Lexpress. Available at: http://www.lexpress.in/law-development/digital-
rights-management-provisions-and-indian-copyright-law [Accessed 3 Oct. 2019].

4. Ariyaratna, B. and Wijesinghe, W. (2018). Protecting Copyrights and Related Rights

in the Digital Dilemma: Some Challenges. Journal of Business Management and
Economic Research, 2(2), pp.44-55.

5. http://www.manupatra.com/roundup/328/Articles/digital%20rights%20management.p
df.

6. Fetscherin, M. (2006). Digital Rights Management: What the Consumer Wants. Journal
of Digital Asset Management, 2(3-4), pp.143-149.

7. Sangharsh P. (2011). Changing Mechanisms in Copyright Ontology: Digital Right

Management. Legal provisions.

8. Arul George Scaria, ‘Does India Need Digital Rights Management Provisions or Better
Digital Business Management Strategies?’ JIPR (September 2012) vol 17 pg 467.

9. Tarun Krishnakumar and Kaustav Saha, ‘India’s New Copyright Law: The Good, The
Bad and the DRM’ 10 JIPR (December 2012).

10. https://khuranaandkhurana.com/2017/05/19/digital-rights-management-its-interaction-
with-
netneutrality/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=Vie
w-Original.

11. http://www.manupatra.com/roundup/328/Articles/digital%20rights%20management.p
df.

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