Journal of Intellectual Property Rights

Vol 22, November 2017, pp 303-310

Copyright Protection in the Digital Environment: Indian Perspective and

International Obligations
Juhi Saraswat and Rekha Chaturvedi†
DIPP IPR Chair, Cluster Innovation Centre, University of Delhi, Delhi -110 007, India

Received 22 December 2016; revised 29 December2017

With the advancement in the digital technology, the distribution of the copyrighted material on the internet has brought
about a drastic change in the pre-existing laws. Unfair use and illegal downloading of copyrighted material such as software,
videos, songs etc. have developed into a major problem in the digital domain. To overcome these problems several
technological and legal measures have been taken up such as development of tools like Encryption, Digimarc, Watermark,
besides framing of various international treaties and agreements including TRIPS, Anti-counterfeiting trade agreement
(ACTA), WIPO Copyright Treaty (WCT), WIPO Performance and Phonogram Treaty (WPPT) etc. Indian Copyright Act
after amendment of 2012 seems to be effective enough to resolve the issues concerned with infringements in the digital
domain hence debate is going on if India should sign WCT and WPPT and the matter is still under consideration of the
Government of India. The development in the digital environment has altered the boundaries for the copyright holders to
look at the protection of copyrighted material through various techniques. The present article deliberates about the Indian
Copyright Act, various international copyright treaties, limitations and exceptions provided by TRIPS and also looks
towards the usefulness of various treaties available for the digital domain. Furthermore, steps to control the misuse of
copyrighted material are also discussed. The article concludes with some suggestions and ideas that could be useful for
regulating the unfair use and illegal downloading of the copyrighted material.

Keywords: WIPO, TRIPS, Indian Copyright Act, WCT, WPPT, Digital Rights Management (DRM), Rights Management
Information (RMI), Berne Convention

Copyright is an important intellectual property (IP) digital domain. In twentieth century, protection of
right for protection of expressions of the creator of work by copyright has become a major challenge
literary, artistic, musical work, cinematograph film and because of the emergence of new category and kind of
sound recordings etc. and plays an important role in work such as software, digital music and videos, etc.
promoting innovation and creativity. Copyright is a The related issues in the digital domain are associated
leading global intellectual property right for controlling with the distribution and amount of content that has to
the reproduction of work and also grants IP rights to a be distributed. In the digital domain, copyright
person, group of individuals, or organizing parties who infringement can be carried out at a low cost, with an
are involved in presenting their work in public like ease and also without compromising with the quality
broadcaster or performers. Copyright comprises a set of work. Besides this, serious issues that are coming
of exclusive rights granted to authors, producers, up include fake websites and e-commerce, illegal
creators, or performers depending upon the type of downloading of songs and videos are some of the
original work which includes the right to copy, biggest concern of this era. Copying content and
distribute and adapt the work.1 Copyright grants a introducing a new website has become a new fraud in
bundle of rights to the creators to protect their original the digital domain that causes high revenue loss to the
work such as right to broadcast, right to display, right owner and a huge profit to infringer as every click on
to produce the work, right to reproduce the work, right the fake web page benefits the infringer. There are
to perform publicly. several reasons of infringement practice but majorly
observed reason behind piracy is the easy usage of
Piracy in the Digital Domain in India
internet and easy availability of the internet. The
Change is the law of nature and process of change
internet on the other hand is responsible for carrying
is very natural; the biggest change in today’s era is in
out business online which is termed as e-commerce.
———————
†
Corresponding author: Email: [email protected] Fast speed, ease and flexibilities of digital technology
304 J INTELLEC PROP RIGHTS, NOVEMBER 2017

have made people to work online as the information task to protect the material broadcasted over the
beyond geographical boundaries can be collected with internet. Signal piracy is an ongoing theft, which is
an ease. Copyrighted material is easily transmitted being practiced nowadays. Broadcast of original
and distributed using advanced technology around the material which is meant for particular platform for
globe using internet without authentication and example cable TV that is being made available on
authorization of the owner; hence there is a real need other platforms such as on the internet, would amount
for the protection of the work without any boundaries. to signal piracy and also result into copyright
Digitization has brought a revolution and also has violation. Fig. 1 shows the digital piracy statistics
helped people for working online as it provides ease worldwide indicating the percentage of piracy in
for carrying out business, entertainment sector and various areas.
education etc. Benefits of digitization have also Some sections in the Indian Copyright Act deal
brought some disadvantages with it. The biggest with the issues of copyright violations of digital
problem encountered in the digital domain is piracy. matter besides giving the right to control its usage. In
In India pirated products such as pirated soft wares, the digital domain, the Copyright Act has to deal with
videos, movies CDs, pen drives, music CDs are easily disputes concerned with illegal downloading of
available in the market at a much cheaper rate.2 movies, music, games, etc. The provisions of the
Besides piracy there is a big issue of downloading of Copyright Act also apply directly to other products
databases and other useful information from the such as computer software, transfer of files or sharing
internet. In our day-to-day life we see many road side of files among the personal computers by peer to peer
stalls and suppliers who sell pirated DVDs, CDs on networks.4 In reality it has become very difficult to
demand. They have all the new releases with them protect the digital material which is on the internet
that hardly cost 30-40 rupees per movie, sometimes and at the same time it is also very difficult to restrict
these pirated CDs are available on hire also and there the access of the data/material which is being
is no question and objection on the quality of the protected.
video and sound. This ease in the availability of Yet another issue emerging with the digital
pirated movies and games, promotes piracy and revolution is the software piracy. Software piracy
consequently effects “Business”. comprises reproduction, distribution and use of
From observations of day to day life, one can software. According to a survey it was found that
conclude that the main reason behind the piracy is a more than 36% of the software used is pirated and
high cost of original CDs, DVDs and software. stolen one,5 consequently there is a price hike of
Availability of the pirated versions of music and films
at low cost has encouraged people to buy pirated
cheaper DVDs of movies, videos, games and music
rather than spending higher amounts for purchasing
these original digital products and hence piracy grows
like a forest fire. Despite the availability of these
pirated CDs of games, music, movies and videos, web
links are also available on the internet that are subject
of illegal downloading. Easy availability of internet
has caused easy, illegal downloading at a much
cheaper rate as internet service providers and telecom
companies offer internet services at a cheaper rate.
With increase in the number of mobile phone
users and similar gadgets, technology is easily
reaching the public and this is now becoming a very
big concern with the progress in developments in the
digital environment. Another important concern, in
addition to above issues, is associated with broadcast
of an original work into public domain over the
internet. In today’s modern era it is becoming a tough Figure1—Digital piracy statistics worldwide
 CHATURVEDI : COPYRIGHT PROTECTION IN DIGITAL ENVIRONMENT 305

original software for the consumers and also a high economy including high revenue loss to the owner of
revenue loss to the actual owner of software. Piracy of the IP, decline in the sale of digital products, addition
software is done in several different ways such as of extra cost in litigation process, wastage of time in
downloading of software online from peer-to-peer dealing with litigation process, last but not the least
networks; pirated hard disks of software are available, very importantly effect on the rise in the cost of
copying of software for which only user has a license, original digital products.
browsing and then installing a copy of software from
an individual and installing it after entering the same Indian Copyright Law and International Scenario
product key many a times on several computers. in Digital Domain
The other emerging issue with the advent of To solve the issue and to limit the usage of
technology is the duplication of database on the copyrighted material, Indian Copyright Act was
internet. It is less cumbersome to manipulate, established in 1957 and became operative since
reproduce and distribute the content available on the 21 January 1958. Several amendments have been
internet and at a low cost which becomes a major incorporated since then and recently in the year 2012
problem in the digital environment. The same is the to meet the national and international requirements.
issue with the e-books which are available on the Copyright, an important IP right, protects only the
internet and are easily downloadable but the problem expression but not an idea, methods of operation,
comes when these e-books are printed and are sold off procedure or mathematical concepts as such (Article
at much cheaper rate which leads to high decline in 9.2 of Berne Convention). Computer programs are
the economic return to the publishers and authors. protected under category of literary work (Article
Huge losses incurred worldwide due to illegal 10.1 of Berne Convention), compilation of data or
downloading and online piracy in various industries material whether machine readable form or in some
including film industry, software industry and music other form are protected as such (Article 10.2 of
industry.6 Besides, this yet another serious issue Berne Convention). Term of copyright depends on the
related to doctrine of first sale of books. Doctrine of type of work sought to be protected.7
first sale in the Indian Copyright Act clearly explains With the technological developments and
that anybody can resell a copy without the permission revolution in digital technology, various digital issues
of owner but cannot sell a copy without the owner’s have cropped up. To regulate the usage of a
permission. But as it is noticed that generally people copyrighted material, several international treaties
sell a copy and keep the monetary returns with them; have been framed comprising the extent of use of
this creates a conflict between rights to own and copyrighted work, limitations and exceptions. World
distribute a copy and becomes impossible for owner Intellectual Property Organization (WIPO) governs
to get back the economic return from the exploitation these international copyright treaties besides many
of a copy, distributed without his consent. other organizations. Sometimes it is required to
Several other issues such as fake websites that are reproduce or present the same original work for
the websites with resembling domain name so that specific non-profitable purposes. For such reasons,
accession to these fake websites increases and that there are some exceptions which exist in the Indian
benefits the infringer for example various fake Copyright Act for specific work such as, for review or
shopping websites etc. with similar domain name. criticism, for research and study (Section 52 of Indian
When customers pay money for buying a product Copyright Act), for reporting current events, in
online and they do not receive any product due to the jurisdiction proceedings, etc.
website being fake, consequently customer faces In the Indian Copyright Law, there are exceptions
problem and loses money because of these frauds on on usage of the content such as, for education and for
the internet. The Copyright Act renders protection to research purposes, which is permissible, but not for
software part only but website domain, frauds on the purposes of entertainment and commercial
fake shopping websites, do not come under the benefits. Since the material on the internet is
ambit of Copyright Act but are deliberated by Cyber downloadable easily and quickly at a low cost which
Law and IT law. results in a quick distribution of the copyrighted
There are several adverse effects of copyright material. Consequently, owners of copyright have a
infringement on intellectual property as well as on fear of unauthorized distribution of their work as this
306 J INTELLEC PROP RIGHTS, NOVEMBER 2017

causes decline in the economic returns. Various 22 countries in the year 2012 in Japan. This
international copyright treaties have been framed such agreement aimed to establish an international legal
as Berne Convention, Rome Convention, Beijing framework for targeting counterfeit goods, genetic
Treaty, Geneva Convention, Brussels Convention, medicine and copyright infringement on the internet.17
Marrakesh Treaty, etc. With the advancement in the technology; it has
The IP issues became too complicated with become a challenge to protect today’s social,
the advancements in the digital technology and economic, cultural development in the digital domain
digital revolution. Protection of copyrighted and to provide solutions to the problem arising by the
material on the web has become a serious issue advancement,18 particularly in the distribution of
of the digitization. Distribution of digital content is protected material on internet by earlier available
attributed as serious cause of infringement. With the treaties. With the advent of internet, strong need was
advent of technology, the existing WIPO treaties were felt to introduce new international rules and revision
found to be inadequate to cover all the new issues of the existing laws hence WCT and WPPT came into
coming up in the digital domain and as there were no force. WCT & WPPT specially deal with the issues,
serious judgments and safety measures in then technological measures and exceptions in the digital
existing treaties to stop the infringement hence a domain hence WCT and WPPT are collectively
need for modifications in treaties was felt. This named as ‘Internet’ treaties.19 Both the treaties aim to
resulted into introduction of new treaties such as revise and supplement the already existing WIPO
WIPO Copyright Treaty (WCT) and WIPO administered treaties such as Berne Convention and
Phonogram and Performance Treaty (WPPT). A brief Rome Convention on copyright and other related
of various international copyright treaties is provided issues. Most importantly in order to aim at the new
in Table 1. developments in the technology and market area,
WCT and WPPT came into existence to meet
Internet Treaties and Agreements challenges posed by new problems arising with
World Copyright treaty (WCT) is a special advancement of technology.20
agreement which clearly explains the meaning of Approximately, more than 100 countries have
Article 20 (entry into force of the treaty) of the Berne signed WCT and WPPT. Both these treaties provide
Convention which explains the protection of original an equal balance between public and the owner of
literary, artistic works, computer programs, writings, rights. These treaties also comprise the exemptions
databases, musical work, audiovisual work, work of and limitations to the rights in the digital
fine art, and photographs.15 WIPO Performances and environment.21 WPPT and WCT both allow four
Phonogram Treaty (WPPT) particularly deal with the different kinds of economic rights to performers for
rights of the performers (musicians, singers, their performances: the right of distribution, the right
actor, etc.) and the producers of the phonogram of reproduction, the right of making available, and the
(sign or symbol which represents vocal sounds).16 right of rental.
The purpose of Anti-Counterfeiting Trade WCT has some special provisions for the rights of
Agreement (ACTA), a multi-lateral treaty, is to the creator and also has much advancement with
establish international standards and intellectual respect to the field of information technology as
property rights enforcement. ACTA was drafted on compared to the treaties already existing. WCT and
15 November 2010 and was signed by more than WPPT deal with the rights of the owner, author,
Table 1—International copyright treaties
S. No. International copyright treaties Formulated at Formulated/effective from Governed by
1. Berne Convention 8 Berne 12 May 1858 WIPO
2. Beijing Treaty 9 Beijing 20-26 June 2012 WIPO
3. Geneva Convention 10 Geneva 16 September 1955 WIPO
4. Brussels Convention11 Brussels 12 December 2012 WIPO
5. Marrakesh Treaty 12,13 Marrakesh 28 June 2013 WIPO
6. Rome Convention14 Rome 26 October 1961 WIPO
7. WCT Geneva 6 March 2002 WIPO
8. WPPT Geneva 12 May 2002 WIPO
 CHATURVEDI : COPYRIGHT PROTECTION IN DIGITAL ENVIRONMENT 307

creator, performers and also neighboring rights, to are more prone to unfair use on the internet; Berne
authorize the owners for making their work available Convention was not capable enough to resolve these
in the public domain on the internet. These treaties issues. The issues, rights and management associated
also contain several technological measures that can with broadcast organizations are dealt under Rome
be used by the authors or owners to prevent their Convention. Rome Convention has minimum
copyrighted material from unauthorized use.22 standards and rights for the protection of broadcast
However, India is not signatory to these treaties. signals and new amendments have not being added
There are several advantages of WCT & WPPT since its framing. TRIPS Agreement also has the same
that provide important economic incentives and provisions as in Rome Convention and did not have
Intellectual Property Rights to the creative individuals any other special rights.
or a company which operates in the digital
Circumventions against Misuse of Copyrighted
environment. These treaties provide a legal platform
Digital Material
for the healthy E-commerce and also protect the
To detect and to stop unauthorized distribution of
creativity within the country and outside the country
copyrighted material and copying of the material,
and are beneficial for both developing as well as
WCT has certain new provisions that deal with
developed countries.23 They also maintain the balance
Technological Protection Measures (TPMs) and
between rights of the authors and larger public
Rights Management Information (RMI). TPMs and
interest, especially education, research etc.18
RMIs are the safeguards for the protection of work
WCT and WPPT provide protection measures and or material.
techniques to copyright owner and performers to TPMs are the safeguards used to protect material
protect their material/work from illegal downloading from being copied in digital format and also it
and unfair use.WCT and WPPT make it clear that protects material from being copied multiple times.12
Article 9 of Berne Convention shall be applicable This includes limiting devices on which song or
mutatis mutandis to the protection of reproduction movies can be copied, this is done with the help of the
rights in the digital environment. According to Article software that do not allow users to make copies from
9 of Berne Convention the owners have exclusive that device. RMI is another safeguard for the
rights of authorizing indirect or direct reproduction of protection of copyrighted material which includes a
their work in any form or manner. label of the owner which is put over the protected
With the advancement in the digital technology, work that embeds the details, information and
reproduction rights became problematic as the contribution of that specific work in it.26 Besides RMI
distribution of protected work over the web is and TPMs, Digital Rights Management technology
associated with the reproduction of work as the matter have been evolved that enable the copyright owners to
gets instantly stored in locally connected computer’s have a good control over their work by allowing users
Random-Access Memory (RAM). India is a signatory to access only a part or category of the material which
to Berne Convention, but there is a deficiency of the are permitted by the copyright owner. Various other
agreement that are related to scope and content of tools have been developed, such as, one time use CDs
rights since the original content of the Berne of games available in the market, are made in such a
Convention does not contain any provision for the way so as to install a game only for one time on one
reproduction rights.24 Berne Convention was found to device only and further use of that CD which has been
be incompetent to explain the protection of used earlier will no longer be possible in the second
reproduction of content. The provisions of WCT and trial. Yet other tools, such as, encryptions and
WPPT make it clear that the information or content watermarks are available to control the usage of
stored permanently in the ‘read only memory’25 or copyrighted material. Digital watermarks are
floppy disk is protected under WCT and WPPT as ‘right available which restrict copying and editing in the file
to reproduction’. The signatory countries (members) while the conventional watermarks deeply rooted in
have a right to restrict the usage and can apply the paper are invisible to naked eyes but becomes
limitations or exception over the copyrighted work. visible only when a paper is subjected to a source of
The other issue is related with the misuse or light, in turn gives the proof of the ownership and
unauthorized access of some works like photographic authentication. The digital watermark cannot be easily
work, pictorial work, computer program etc. which removed from the file and is embedded in the form of
308 J INTELLEC PROP RIGHTS, NOVEMBER 2017

an image which gives the information and also serves per se WCT and WPPT. India has not yet acceded
to authenticate the source of the image. Another tool to WCT and WPPT though the amendments in
is ‘digimarc’ for the software in the form of an image Indian Copyright Act in 2012 were made according to
which contains all the information about the owner WCT and WPPT to address and solve some of the
and his distribution rights. Digimarc employs special digital challenges. WCT contains all new minimum
software named as “Spider” which continuously standards that restrict the distribution, use and
examines websites for copyright pirates.27 authorization of work in public over the internet and
Though, above mentioned digital technologies are also provide rights to distributors and creators to have
helpful to restrict and control the use of a copyrighted a control over their copyrighted work over the internet
material on the internet but they are not sufficient to hence there seems to be no direct disadvantage in
completely stop the infringement. These various tools signing WCT and WPPT rather it will place new
only make it more difficult for infringer to use the exceptions/ limitations on the Indian government to
copyrighted material and help owner to protect their modify its laws according to the new circumventions
intellectual property to major extent. To reduce the with further development and revolution in
unauthorized downloading of movies and music, technology especially in the digital environment.
some software is made compulsory to download With the latest amendments in the Indian
songs or movie but for that software itself has a Copyright Act in the year 2012, all the aspects
subscription fee, one has to pay the subscription fee covered under WCT and WPPT have been united.26
and only thereafter it can be used for downloading Section 65 has been introduced in the Indian
movies or songs for which it is made. There are some Copyright Act in the year 2012. Section 65(A) deals
requests available for authentication when one with the protection against the ways of technological
downloads particularly or enter a database, this measures while Section 65(B) deals with the legal
restricts the misuse of digital products.28 action to be taken in case of infringement issues
Growth of software in India have been phenomenal related to protection and removal of RMI without the
since 1990s, Indian Government formulated IT Act authorities’ concern, and distribution, communication,
especially for the protection of software in 2000 broadcasting without the consent of the authorities.
(latest amended in 2008) it helps to protect the Section 65(B) of the Act is broadly classified into
cybercrime and also protects digital signatures, further two sub-sections numbered as 65B(i) and
electronic records, etc. but fails to protect computer 65B(ii) that were added as a new amendment in the
software. Softwares are protectable under Copyright Indian Copyright Act; 65B(i) deals with the issues
Act, Patent Act as well as under Trade Secrets. But related with removal of RMI intentionally, infringer
despite the legal protection, laws and orders for shall be imprisoned for at least two years and with a
software protection are not recognized enough in heavy fine whereas 65B(ii) also contains similar kind
India, in most of the cases British and American of penalties as of 65B(i) for a person who distributes,
jurisdiction are followed.29 broadcasts or communicates the material after altering
In today’s era it is very convenient and easy for the or removing RMI without the consent of the
copyright owner to reach to a large number of people authority.21 This new amendment conforms to Article
and users with the help of internet and advanced 12 of WCT and Article 19 of WPPT relating to rights
digital technology and also help people to use or to management information. These latest amendments
access the material by paying an amount which is were introduced in the Indian Copyright Act to solve
named as a ‘pay and use’ policy of copyright system. the upcoming issues in the digital domain.
But on the other hand, there is a disadvantage of India is a signatory to Universal Copyright
technological development it also assists users to Convention, Rome Convention, Berne Convention
unauthorized downloading and copying of material etc. and also a member of WTO-TRIPS agreement. It
from the internet at a much cheaper rate or sometimes is an interesting fact that India has neither signed
free and with faster speed and with same quality. WCT nor WPPT and this could be due to the strict
copyright provisions in the treaties which undermine
Copyright Protection- Emerging Trend many goals of accessibility currently being pursued
Various countries are harmonizing their own by India.30 Debate is still on as to whether India
national laws and rules on the basis of WIPO treaties should soon sign these international treaties in future
 CHATURVEDI : COPYRIGHT PROTECTION IN DIGITAL ENVIRONMENT 309

but latest amendments in the Indian Copyright Act has now become necessary to maintain a balance
seem to be the elementary steps of signing these between two really important aspects in copyright:
treaties but much information on this is not available infringement and expensive enforcement. The
in the public domain. problem associated with the infringement in copyright
To deal with infringement in the digital domain, is loss of earnings and additional cost expenses in
adoption of DRM provision will lead India to enter unsuccessful litigation.
into the TRIPS+ regime as DRM provisions are not There is an extensive requirement to make
under TRIPS obligations. DRM provisions are efforts focusing on educating the consumer especially
nothing but contain all safety measures which are the younger generation, to overcome the challenges
imposed by WCT and WPPT. More than 89 countries such as duplication and infringement and also to
became signatory to WCT and WPPT and by respect the talent and ability of a person whose work
this it is clear that these nations have been able contributes for cultural, scientific and economic
to confront the pressure by joining these two internet benefits of the society as whole. Apart from
treaties. If India accedes to these internet treaties, developing the technology for stopping infringement,
this might create a pressure on other nations to it is required to curb infringement at a small
become signatory, consequently it will push entire level for example, by avoiding illegal distribution
world into a TRIPS+ regime.28 These reasons might of downloaded copyrighted material. Besides this,
have prompted Indian Government to have a developing the technologies high in copyright
discussion for deciding India to become a signatory standard can also reduce infringement for
to these International Copyright Treaties or example, high bandwidth digital content protection
TRIPS+ regime standards. (HDCP).
Various provisions are available for the broadcast To resolve these issues, various steps can be taken
rights in the Copyright Act which are directly up by the government as well as the individuals, such
associated with the rights of the owners to control the as, raising the awareness and educating stakeholders
content which is being broadcasted. The Indian and public about the infringement and the safety
Copyright Act is competent enough to resolve the measures. Besides, there is need to develop the
issues coming up with the new technological modernized methods of protection of software and
advancements. Indian Copyright Act already other copyrighted material to keep the creativity and
incorporates all the provisions mentioned in Rome innovation alive. Also, there is a need to improve IP
Convention and TRIPS Agreement as a specific enforcement by making strict laws and policies for
Section in the Act such as, Section 14 and Section 37. effective enforcement of the law against the
Section 14 deals with the rights of the author to infringement cases and train the judiciary and police
communicate his/her work publicly via broadcast or agencies adequately for effective enforcement. Sale of
any other mean whereas Section 37 deals with the software must be fully licensed and must carry
rights against signal piracy. Copyright Act provides special characteristics embed in it that one can easily
ownership to author to create a monopoly of rights on catch the person if it is used illegally without paying
transmission of the original work and not on the for the usage.
content which is being transmitted. Discussion on Infringement has become a serious issue nowadays
drafting a new treaty named ‘Treaty on the Protection especially when it comes to copyright protection in
of Broadcasting Organizations’ is under process at the digital domain. To conclude, this research article
WIPO, but further need of this new treaty for India is addresses the advantages of the remedies that are
still under discussion. available in the Indian Copyright Act (amended) and
Culture is thought to be the engine of the the international treaties that are available to address
sustainable development. With the advancement and the challenges for these issues and to solve these
change in the culture which is closely linked to problems. Though several technological measures
technological development, advancement in the have been developed to control the illegal usage of the
technology has made the task for enforcement of digital material but still there is a huge need of well
copyright protection much more difficult. It has now skilled and trained police force that can detect
become a challenge to respond to the new infringement and can stop it and enforce the legal
development in an appropriate and effective way. It protection.
310 J INTELLEC PROP RIGHTS, NOVEMBER 2017

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