IPR And Enforcement Mechanism: Problem And Prospects"Determine that things can and shall be done and then we shall find the way" - Abraham LincolnThe objective of IPR is to give the greatest good to greatest number. In other words this approachstates that these rights induce people to behave in the ways that increase socially valuable goodsand services and distribute these goods and services in the fashion that maximizes the net profitthat people reap from them. The distinctive characteristics of most intellectual products are thatthey are easily replicated eg.Copyright and this can be easily done when a person is working indigital environment. Digital environment is intrinsically different from print and mass media.The digital environment can be characterized as ephemeral and ethereal. In the words ofBenkler," There are three attributes of information society:1. Plasticity2. Transmissibility3. ProcessibilityThe plasticity, transmissibility and processibility are unique to digital environment. Thesecharacteristics are the product of electric impulses of binary language of 0s and 1s.At best, theyare symbols and therefore intangibles. These symbols are converted in human readable formsand also know no borders. Written and printed texts, sounds, speech and pictures can be reducedto 0s and 1s and once reduced they become signals and hence vulnerable to mutations by the usefor multimedia, become capable of being combined, separated or manipulated in any or all formsof expressions in ways which were never thought of. However it is not the intangibility alonewhich is problematic because Common Law incorporates incorporeal rights. The problem isintangibility plus plasticibility, transmissibility and processibility which require law and legalinstitutions for remapping of the contours of digital environment.The digital environment offers a wide range of possibilities to all stake holders. In particular, thetechnical development has moved the internet increasingly from a centralized structure where theusers utilizes those contents offered by website to one where more powerful devices withcheaper connectivity and faster transmission speeds, offer consumers access to richer onlinecontents. The advent of broadband promised ubiquitous access to all types of intellectualproperty in a manner previously not possible. This permits not only a greater dissemination ofsuch Intellectual Property, but also stimulates consumer demands for the services that enabledaccess. The problem arises just after the contents take the digital form and are put on internet.There are some inherent weaknesses associated with the management of digital rights as thesame being prone to violation by use of technology itself. There have been several efforts toovercome the problem and find a way for the efficient management and the protection of digitalrights. It has rightly been recognized that digital rights neither be protected nor be enforcedunless solution for the problem is sought in the technology itself.As with the ever developing technological advancement the number of people using internetservices is increasing so is the malpractices to negate the interests of IPR and to reproduce thecontents available thereon. The most common act of violation is observed as piracy, which hasnot earlier been specifically defined in the Copyright Act 1957 or in any other legislation dealing
in Intellectual Property Rights. Even IT Act, 2000 does not provide specific provision dealingwith piracy.This paper is an attempt to analyze the Intellectual Property violation with special reference todigital rights management. Copyright and its related rights are essential to human creativity, bygiving creators incentives in the form of recognition and fair economic rewards. Under thissystem of rights, creators are assured that their works can be disseminated without fear ofunauthorized copying or piracy. This in turn helps increased access to the work and furtherenhances enjoyment of culture, knowledge and entertainment all over the world. It is recognizedworldwide that copyright piracy is a serious crime which not only adversely affects the creativepotential of society by denying the creators their legitimate dues, but also causes economic lossesto all those who had invested their money in bringing out copyrighted material in various formsfor use by the end users.With advancement in technology new techniques have been developed to control the internetpiracy on copyrighted contents. Digital Rights Management is an impressive attempt amongstsuch techniques. DRM is primarily a process of insertion of particulars of the intellectualproperty into it. And, therefore it is an aid to curb the piracy practices. Digital Rights andInformation Management is usually construed as protection of copyright and controlling internetpiracy but our submission identifies DRM as a technology used to identify, describe, distributeand trading of contents and regulation and enforcement policies on digital media. Informationstored on electronic form is cheaper, easy to store, retrieve and speedier to communicate. Theseadvantages of Web have attracted many people and easy access to information on the websitemay result in conflict with their copyright interests.Globalization has forced the copyright issues to forefront because large number of copyrightproducts is traded internationally. But the challenge imposed by the development and growth ofthe internet to the existing copyright laws is immense. There are several issues to be discussed:1. What is copyrighted on contents available on Internet?2. How should one decide where the copyright infringement has taken place?3. Who should be held liable for copyright infringement and how?4. How the balance is to be achieved in protecting the works of the author and the usage andawareness of works of such authors?5. How does the DRM help in the copyright protection and enforcement?I. Copyright on InternetIf we analyze the issue in context of India, it requires a brief discussion of provisions dealing incopyright and particularly in cyber piracy. Anything that can fall within ambit and scope ofdefinition as provide in Section 13 of Copyright Act, 1957 is a subject matter of Copyright.Intricacies of contents available on the internet being intermingled in nature have composition ofliterary, artistic, dramatic, cinematograph, musical and sound recording. Seen from the laws ofCopyright, the Information Technology Act 2000 does not lay down any concrete frame work fordealing with specific Copyright violations on the internet. The inability of the Act to addresscopyright issues in proper detailed manner has been criticized as one of its most glaring lacunas.However there are provisions that can be construed to be seeking to address some aspects ofcopyrights as is obvious from Section 43 of the Act which relates to penalty for damage to
computer, computer system, etc. Hence while generally, the issue of copyright violation comesunder the purview of the Copyright Act, which will also cover copyright violations on theInternet. But looking at the provisions of the IT Act, it can be said that there has been somepiecemeal effort made to deal with the possible copyright infringement on the Internet. The textof Section 43 the Act of provides as follows: "If any person without permission of the owner orany other person who is in charge of a computer, computer system or computer network, —(b) downloads, copies or extracts any data, computer data base or information from suchcomputer, computer system or computer network including information or data held or stored inany removable storage medium;……….he shall be liable to pay damages by way ofcompensation not exceeding one crore rupees to the person so affected."Article 10 of the TRIPS agreement and Arts. 4 and 5 of WCT recognize that not only computersoftware is protected, but also content of web pages are protected under the treaty, if they areoriginal. Thus, the unique underlying design of a webpage and its contents, including links,original texts, graphics, audio etc. and all other unique elements that make up original nature ofmaterial is copyrighted.II. Copyright InfringementThe second issue requires consideration that internet has made it possible to replace traditionalpaper based communications by electronically based communications which does not knowphysical or geographical boundaries. The efficiency and speed brought by this technology hasmade it a good alternative. It is still in its evolutionary process and only future will tell us whereit will lead us. The existing copyright laws are territorial in nature and the standards of protectionembodied in international conventions leaves room for national legislative determinations andtherefore acts, which may constitute infringement in one country but may not constituteinfringement in another. Thus the first important goal of international community should be toharmonize their respective Intellectual Property Laws. International community should seriouslyapply its resources to establish an international tribunal like Copyright Management Office orsome dispute settlement body to decide matters of copyright infringement having internationaltinge. The next phase of it should be to take help of private international law. Now it can be saidwith clarity that internet has certainly fastened the entire process of globalization. If thisjurisdiction issue is not settled and a liberal stand is not taken on issue like sovereignty, then thisinternet revolution as the "information gateway of the future as a misnomer of the times tocome".III. Liability for Copyright InfringementThe explosion of the internet as a vast decentralized non- geographical communication andcommercial network has presented much unique e-governance, especially concerning regulationthrough law. It has become obvious that a crucial node of power for the purposes of law andgovernance is the Internet Service Provider (ISP). Uniquely placed in the decentralizedinteractive networks, ISPs influence conduct and enforce cultural norms or laws. The question,then is, whether to enact a whole new system of laws that deal with ISP in particular or to modifythe existing laws. The enactment of a new system of laws does have its own supporters.However, this may sometimes be in conflict with the interests of the internet technology and tocertain extent may restrict to the right of freedom of information
In Indian context, the Intellectual property rights are dealt under the provision of IndianCopyright Act, 1957. The Act does not have any section dealing with piracy of computersoftware from the internet. Though the Act, when it comes to software takes care of offlinepiracy, it fails when it has to deal with online piracy. The Information Technology Act, 2000 hasmade significant amendments to other such as IPC, Indian Evidence Act, and CriminalProcedure Code. However, one area that existing principles of copyright may be applied to theinternet through analogy, it is true, the medium does pose new challenges which analogy may beto deal with. Thus, we strongly recommend the following amendments in (Copyright Act, 1957):(1) Section 2(ff) defining "communication to the public" should be amended to include anexplanation to take account of the internet.(2) Section 2(ffc), which defines what is meant by software, to take into account web pages also.(3) Section 2(hh) which defines the term duplicating equipment should include, compact discwriters, floppy drivers and electronic copying of the internet.(4) To incorporate the existence of an implied licenses under the defenses available to users.(5) To increase the quantum of fine that can be imposed on the violators of the copyright.(6) To tighten the enforcement mechanisms to take into account the internet.As far as we are concerned, ISPs should not out rightly be held liable for two basic reasons:(1) To promote e-commerce and various transactions taking place electronically.(2) To pave the way towards globalization, the need of time.In order to favor ISPs the appropriate approach should be to test technological perspective ofreasonable man to determine ISPs liability. The suggestions may include that ISPs shouldinternalize losses caused by their existence as a cost of doing business. This encouragesenterprise (ISPs) to take precaution against relevant losses or raise compensation for victim byspreading those costs over a broad segment of society. Next to this point, we would like to give anew dimension to extend the scope of the section 79 of IT Act, 2000 especially the phrase "DUEDILLIGENCE" as following:(1) Posting of notices, warning to the potential users of the site not to use internet adverse to theinterests of the creator of the intellectual property.(2) A periodic reviewing of site and bulletin boards with a view to monitor violating activities atthe end of users.IV. Balance of InterestsThe forthcoming issue is to decide the balance between the authors rights and that of usersrights to information. There are four criteria to be considered in determining the availability ofthe fair use doctrine. They are:1. The purpose and character of the defendants use of the allegedly infringed work, includingwhether such use is of a commercial nature or is for non-profit educational purpose.2. The nature of copyrighted work.3. The amount and the substantiality of the portion used by the defendant in relation to thecopyrighted work as a whole, and4. The effect of the use upon the potential market for, or the value of copyrighted work.
Recommendations:The overall economic scenario of our country is not very sound as indices are indicative of that.The prime concern of the country is to ensure the balance of the commerce as well as of theintending users of Intellectual property. If a summary is conducted to parse the status ofindividual, be it be their dealing in creation of Intellectual property or in its trading and also thepeople who are at the target for their consumption then the picture that comes in mind is noneelse but is a true story narrating plight of the citizens. .Probably this might have been the reasonto not to give full effect to the policies followed by developed countries having altogetherdifferent circumstances prevailing there. We recommend as follows:(1) There is well known concept of "parallel importation" providing a country to import theintellectual property at cheapest rate. The expenses associated with the creation of intellectualproperty in India to make it marketable are still cheaper than any other part of the world, furtherwe are not well equipped with the devices used to comply with DRM and further no initiativeshave been made by the countries.(2) Technology involved to comply with the DRIM is expensive and not affordable for thepeople trading particularly in small scale industries nor would the user be able to pay theenhanced price due to adaptations of DRM techniques. Therefore as a consequence the vitalinterest of the people would greatly be adverse.(3) India, if complies with the international treaties as WCT and WPPT etc. or other conventionsdetrimental to its own interest, would ultimately lag behind in the development. Therefore, nostrict adherence to DRM policies can be implemented into by way of existing legislation but stillthere is a need to have a glance on the provisions governing and regulating Intellectual PropertyRights in view of advancing technology.(4) Having studied the entire scenario in Indian perspective, fair dealing emerges as a greatdefense for the promotion of Intellectual Property and to make people enrich in their knowledge.India is a country where people cannot pay even for the basic expenses of the education astuition fees and therefore it is not fair to expect them to spend for expensive books or otherintellectual properties as their prices are rising exorbitantly, particularly the online researchmaterial or the books that can be made available only at educational institutions or the publiclibraries. Adopting DRM would be a difficult task as it is not easy to distinguish the nature of useof intellectual property. The copyright law provides the concept of public domain which in turnprovides that after the expiry of the term the work would fall in public domain but with DRM itis not possible.(5) Authorities responsible to adjudicate the claims of intellectual property must be well trainedto handle the cases efficiently to ensure fair use of intellectual property.(6) Enforcement agencies must get incentives for their efforts to monitor and surveillance thesuspicious use of intellectual property by awarding them a share of benefits to encourage them towork well.
(7) Heavy fine must be imposed on infringer, a database of the violators has to be maintained andreviewed periodically and be publicly issued to discourage and harass the violators.(8) Government should frame such law by which the development, production and distribution orsales of DRM infringement tool and software become too costly to be used as its use cannot becompletely prevented due to the very versatile nature of technology.(9) Price of the intellectual property should be regulated in a manner to keep it low in cost thanthe value of expenses likely to be incurred to reproduce it in other way round.(10) Some DRM technique and tool should be developed in such a way that they can providemore security and which can comprehensively check at what extent or level the user have theaccess.(11) Watermark is not a good DRM protection tool, because as in case of paper based intellectualproperty, where material can be reproduced by typing the contents manually similarly in case ofdigitized intellectual property it can be removed by some tool, however after removal ofwatermark the quality of work decreases but still it may be used.(12) DRM should be implemented to cover only those intellectual properties which are verysensitive or in which there is a lot of money or effort is involved in its development.(13) Government should formulate policies to encourage for the development of DRM tools andtechnique.(14) Awareness of intellectual property rights as well for liability in case of violation should bepromoted by educating general public, market players and users.(15) For scientific development and for study purposes the copyright material must be madeavailable free or with minimal charges.(16) Enforcement agencies must ensure that the creator is getting due benefits, but public interestmust not be ignored.(17) Use of DRM protected material should be promoted and appreciated. Static information inregistry of software is to be incorporated so as in case of any change in it, inbuilt software stopsworking or does not allow the contents to display.ConclusionThe analysis in this paper brings forth the fact there is undoubtedly a very strong regime thatprotects computer software, off-line, but this existing regime fails miserably when faced with theproblems that the internet throws up. The issue that arises is whether one wants to extend theexisting intellectual property to the internet or let the internet find the solution for itself, as it hasin certain cases, with concepts like shareware, copylefting etc. Alternately, should there be a newsystem of law that should govern intellectual property on the internet?
The question then is whether to enact a whole new system of laws that deal with internet inparticular or to modify the existing regime. The enactment of new system of laws does has itssupporters, especially among the software lobby, but it poses certain problems. It would alsomean the creation of whole new system to enforce these laws. Moreover, this would lead to thedestruction of the very concept for which the internet has been created, that is, the freedom ofinformation.The present legislative scheme does not have specific chapters on the piracy of computersoftware from the internet. The Copyright and the I.T legislations are at times regarded asmyopic in approach. At the best they take care of the problems of off-line piracy. Thus there isneed of radical overhauling of Copyright and I.T. legislations specially the conceptual ambit,contents of rights and liability redressal.ReferencesPraveen Rani Gaur, S.K.Visen: Adapting the Copyright Regime to Computer Software.Saleem Akhtar: Infringement And Remedies Of Copyright in India: A Judicial Approach.Souvik Ganguly: International Legal Regime on Protection and Enforcement of Copyright andChallenges of the Internet.V.K.Gupta : Copyright For The XXI Century : Remedies And Enforcement.Mohd. Salman Waris: Computer Piracy , Copyright Concerns And Conflict Of InformationTechnology: Need for an Interactive Approach.