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Published by Enhelion, 2019-11-30 01:19:22

MODULE 9

MODULE 9

MODULE 9
COPYRIGHT AND THE INTERNET: THE
VIRTUAL ART MUSEUM

T
he world today does not function without “the internet”. We being humans have a curiosity
for information, psychologically, so what better than the world wide web accessible on even
the smallest gadget.

The Oxford dictionary describes internet as “a global computer network providing a variety of
information and communication facilities, consisting of interconnected networks using standardized
communication protocols”. In simple terms, it connects one computer to any other computer
around the world and can be accessed almost anywhere by numerous means.

This discovery of internet which took place in 1970, today has been a boost to every field of
information and knowledge. In recent times, the internet has served the purpose of sharing ideas
and ideologies with large number of people just by one click. Social networking sites, blogging,
publishing article online, public forum discussions etc. are few example. Since entering the age of
information, it has been realised that the effect of internet can be drastic. There are opportunities
to hear new point of views, discover new technologies and break down long standing barriers.
However, the spread of computing and the Internet have made it difficult to apply traditional
intellectual property laws. Despite popular belief, just because it's easy to distribute information
using the Internet does not mean that it's right to do so1.

This module encompasses various methods, laws, cases and other important aspects of protection
of intellectual property rights on the internet.

3.1 COPYRIGHT PROTECTION

T he biggest asset that an individual or an organisation has in this expression of ideas on the
internet, is the intellectual property right in it. Intellectual Property being, “original creative
work manifested in a tangible form that can be legally protected”2.
Such intangible asset on the internet should also be protected under the law. Among all the kinds of
intellectual property i.e. Copyright, Trademark, Patents, Geographical Indications etc., Copyright is
the most crucial to be protected when it comes to material on the internet. Works covered by


1 Article - Protecting intellectual property rights through information policy; June 2004; By Karthik Raman
Found at - http://ubiquity.acm.org/article.cfm?id=1008537
2 Defined in http://www.wipo.org/about-ip/en/iprm/pdf/ch1.pdf

1

copyright range from books, music, paintings, sculpture and films, to computer programs,
databases, advertisements, maps and technical drawings3. Copyright will ensure that no one can
duplicate or make a same idea out of the authors work.

Copyright protects the following works –

Literary works such as novels, poems, plays, reference works, newspapers and computer
programs; databases;
Films, musical compositions, and choreography;
Artistic works such as paintings, drawings, photographs and sculpture;
Architecture; and
Advertisements, maps and technical drawings.


It outspreads only to expressions, and not to ideas, procedures or mathematical concepts as such.
One may or may not be obtainable to get copyright for titles, slogans, or logos, depending on
adequate authorship.

Two types of rights are given under copyright. Economic rights, which allows the owner to gain
financial reward from the use of his works by others; and Moral rights, which is the right to claim
authorship of a work, and the right to oppose changes to the work that could harm the creator's
reputation.

Following are few examples of rights an owner has to prohibit or authorize us of his work –

Its reproduction in various forms, such as printed publication or sound recording;
Its public performance, such as in a play or musical work;
Its recording (“fixation”), for example, in the form of compact discs or DVDs;
Its broadcasting, by radio, cable or satellite;
Its translation into other languages; and
Its adaptation, such as a novel into a film screenplay.

Berne Convention4 provides that there is no need to register a copyright, since it is automatically
incorporated in the work. But, some countries in their statutes include registration of works. This is
done in order to deal with future disputes, over ownership or creation, financial transactions, sales,
assignments and transfer of rights, which may arise.

Practically, it isn't entirely possible to protect the copyright of intellectual property on the internet.
There aren't people enough in the world to watch for each and every computer and website that
might have made a copy of one’s work, once it has been published. However, the initiative has been
taken to protect such rights by using technology.

In the digital environment, intellectual property such as copyright exists in music, movies, television
shows and computer software. The copyright owner has the exclusive rights to carry out acts


3 Defined by WIPO; Found on - http://www.wipo.int/copyright/en/
4 Berne Convention for the Protection of Literary and Artistic Works, 1886

restricted by the copyright, which means that the material cannot be copied or distributed without
the copyright owner’s permission.

3.2 TECHNOLOGY MANAGING INTELLECTUAL PROPERTY

M anagement of intellectual property is an accelerating problem in today’s global
knowledge economy. Cyberspace is composed of bits, the binary code that is the
foundation of everything on the internet or computing. Digital technology allows the
transmission and use of all of these protected materials in digital form over interactive networks5.
The method of digitization permits conversion of such material into binary form, which can be then
transferred to any medium to be re-used, copied or stored. While the transmission of text, sound,
images and computer programs over the Internet is already commonplace, this is also becoming
true for transmission of audio-visual works such as feature films, as the technical constraints of
narrow bandwidth begin to disappear6.

In its digital form, images, music, video, and text are perfectly reproducible; not just once, but an
infinite number of times7. And in digital media, a copy is as good as original. Internet has the ability
to share digital works speedily and in a much less expensive way. The downside being that the
owners has little control over the subsequent dissemination and use of their work. This poses very
difficult problem as to how works can be used or re-used and the rights of producers or creators be
protected under existing laws.

The result of such massive distribution is, disruption of traditional markets for the sale of copies of
programs, art, books and movies8. For example, in the music industry, internet-based file swapping
services such as Napster and others, have enabled a large-scale exploitation of music and recordings
without the authorization of the rights holders. That exploitation was further aggravated by the
simultaneous broad commercialization of CD burners and portable MP3 players, adapted to the
most commonly used file format9.

3.3 DIGITAL RIGHTS MANAGEMENT (DRM)


5 The Impact of the Internet on Intellectual Property Law; WIPO ip Survey; available at
http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap3.html
6 For a discussion of digital distribution of films online, see presentation of A. Khanna, Chairman, Reliance
Entertainment, Ltd., and presentation of T. Dow, Vice President and Counsel, Technology and New Media, Motion
Picture Association of America (MPAA), Second WIPO International Conference on Electronic Commerce and
Intellectual Property ("Second WIPO E-commerce Conference", September 2001), at
http://ecommerce.wipo.int/meetings/2001/conference/program/index.html. See also presentations of G. Whitson, Senior
VP, Business and Legal Affairs, Warner Bros. Online, and L. Safir, Chairman, AFMA Europe, WIPO International
Conference on Electronic Commerce and Intellectual Property (" First WIPO E-commerce Conference", September 1999)
.
7 Managing Digital Entreprise by Michael Rappa; found at - http://digitalenterprise.org/ip/ip.html
8 Even without the effects that can result from copyright infringement, these markets will face considerable pressures
generated by new business models and disintermediation in the networked environment. See " The Economic and Social
Impacts of Electronic Commerce: Preliminary Findings and Research Agenda," OECD, at Ch.4 (1999) (in particular, the
OECD highlights the effects of disintermediation).
9 WIPO ip survey; The Impact of the Internet on Intellectual Property Law;
http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap3.html#_ftn69

What is DRM?10

3.3.1

Bought an ebook from Amazon but can't read it on your ebook reader of choice? That's
DRM.
Bought a DVD or Blu-Ray but can't copy the video onto your portable media player? That's
DRM.
Bought a video-game but can't play it today because the manufacturer's "authentication
servers" are off-line? That's DRM.
Bought a smart-phone but can't use the applications or the service provider you want on it?
That's DRM.

Digital Rights Management is the term given to very wide spectrum of technology. Essentially it is
the technological means to either control, track or provide or deny access to and use of content in
the digital environment.

DRM can mean different things. In one sense it can be about the technical process of securing
content in a digital form. In another, it can be an entire technical process of supporting the
exchange of rights and content on networks like the Internet. Therefore, DRM is often separated
into two functional areas11 i.e.

The identification and description of intellectual property, rights pertaining to works and to
parties involved in their creation of administration (digital rights management);
The (technical) enforcement of usage restrictions (digital management of rights).


DRM technologies can control file access (number of views, length of views), altering, sharing,
copying, printing, and saving. These technologies are contained within the operating system,
program software, or in the actual hardware of a device.

It can act as a barrier to access, where rights, expressions, languages are used to inform user about
the limitation of use on content, or allow the owner of the rights to track the use of its content12.

DRM functions in a two-part scheme. It depends on encryption to protect the content itself and
authentication systems to ensure that only permitted users can unlock the files. It scrambles the
data in the filed making it unreadable without the unlocking key.

If without a valid username and password or when a file has been decrypted too many times, the

system will not provide the key. Therefore, music files with DRM, for example, can be exchanged
over the internet and still remain unusable. And only authorised programs and portable players can
use the tracks. Music without DRM, like the popular MP3 music format, retain the ability to be
played regardless of the number of times or to whom they have been copied13.


10 DRM; Electronic Frontier Foundation, defending your rights in the digital world; available at
https://www.eff.org/issues/drm
11 WIPO Standing committee report 2003 on Current Developments in the Field of Digital Rights Management; pg. 10
12 WIPO guide on Managing of Intellectual Property for Museums; By Rina Elster Pantalony; Pg. 62
13 BBC news Article - Q&A: What is DRM? ; published on Monday, 2 April 2007; available at
http://news.bbc.co.uk/2/hi/technology/6337781.stm

ILLUSTRATION: If A writes and records a song for selling to a music company and the song is
distributed on some sort of media because digital info is easy to copy on most media, what can A try
to do?

Look for copies?
Mark recording to make it easier to find copies?
Restrict media so only certain devices can play it?

All these solution are not perfect but approachable. Starting with Examination or modification of
content i.e., Content hashing and copyright crawling, Watermarking, Fingerprinting.

Content hashing is a procedure why which digital content is hash tagged by algorithm and then it is
fetched over the web by copyright crawling. Crawling means fetching content from the web pages in
an automated manner as opposed to manually opening each page in your browser14.
Watermarking15 or Digital Watermarking are methods and technologies that hide information, for
example a number or text, in digital media, such as images, video or audio. The embedding takes
place by manipulating the content of the digital data, which means the information is not
embedded in the frame around the data. The hiding process has to be such that the modifications
of the media are imperceptible. For images, this means that the modifications of the pixel values
have to be invisible. Furthermore, the watermark must be either robust or fragile, depending on the
application. By "robust", we mean the capability of the watermark to resist manipulations of the
media, such as lossy compression (where compressing data and then decompressing it retrieves
data that may well be different from the original, but is close enough to be useful in some way),
scaling, and cropping, among others. In some cases, the watermark may need to be fragile. "Fragile"
means that the watermark should not resist tampering, or would resist only up to a certain,
predetermined extent. Digital Fingerprinting is a technology which enables content owners exercise
greater control on their copyrighted content by effective identification, tracking and monitoring
across distribution channels (broadcast, radio, live, web etc..) while opening additional monetization
avenue by exploiting extended value of digital assets16.

NOT TO CONFUSE:

Digital Rights Management is many a times confused with terms like copy protection, copy
prevention, and copy control. However, it is a more general term because it includes all methods of
management of works, including copy restrictions, but copy protection or copy prevention or copy
control may include measures that are not digital in nature. For example, use of access codes to
limit use of photocopiers. In addition, DRM usually includes a set of legal permissions, frequently
expressed as a licensing agreement, which establish what one can and cannot do with the work17.

DRM should also not be confused with the term Technical Protection Measures. TPM technologies
are that, which control and/or restrict the use of and access to digital media content on electronic
devices, which have such technologies installed. Increasingly, DRM relies on TPMs to implement


14 Is crawling legal? By Arpan; available at http://blog.promptcloud.com/2013/01/is-crawling-legal.html
15 2001-2013 AlpVision; available at http://www.alpvision.com/watermarking.html
16 #3 Concept Series : What is Digital Fingerprinting Posted In Media Concepts - By Nitin Narang on Tuesday, June 4th,
2013; available at http://www.mediaentertainmentinfo.com/2013/06/3-concept-series-what-is-digital-fingerprinting.html/
17 Facts Sheet; Digital Rights Management and Technical Protection Measures; available at
http://www.priv.gc.ca/resource/fs-fi/02_05_d_32_e.asp

these controls and restrictions. TPM includes, use of dongle, use of registration key, the use of
Internet product activation, use of encryption, use of digital watermarks etc.

3.3.2 DRM TECHNOLOGIES:

Software and Computer games use DRM technologies to restrict the number of systems it
can be installed on by requiring validation with an online server.

Electronic Arts, Ubisoft, Valve, and Atari are certain examples that use pertinent online
authentication i.e., online based-DRM.

Bohemia Interactive have used a form of technology, wherein if the game is suspected to be
pirated, annoyances like guns losing their accuracy or the players being turned into a bird
are introduced.18
Enterprise digital rights management (E-DRM or ERM) is the application of DRM technology
to the control of access to corporate documents such as Microsoft Word, PDF, and AutoCAD
files, emails, and intranet web pages rather than to the control of consumer media.
Content Scrambling System (CSS) employed by the DVD Forum on film DVDs. CSS uses an
encryption algorithm to encrypt content on the DVD disc.

An early example of a DRM system was the Content scrambling system used by the DVD forum on
DVDs19. Prior to 2009 Apple iTunes store also used a DRM technique known as the FAIRPLAY system
for music and as apple did not licensed their DRM technique to any other companies only Apple
devices could use and play iTunes20.

DRM can enable content owners to effectively and easily offer their work and media online, while
maintaining the integrity of their copyrights, irrespective of how widely circulated their digital
material is.

EXAMPLE21:

Adobe Flash Access provides the ability to add content access and control to your Adobe Flash
based media. This DRM provides key features such as:

Protection Adobe Flash Video or H.264 (FLV or F4V)
Live Streaming Video protection
Downloadable Video protection
Playback on PC or MAC via the Adobe Media Player
Adobe AIR integration for custom applications
Offline Playback

MICROSOFT DRMS

3.3.3

Microsoft provides two kinds of DRM:


18 Nathan Grayson (November 17, 2011). "Interview: Bohemia Interactive's CEO on fighting piracy, creative DRM;
available at http://www.pcgamer.com/2011/11/17/interview-bohemia-interactives-ceo-on-fighting-piracy-creative-drm/
19 Content sampling system An Introduction, available at www.cs.cmu.edu/~dst/DeCSS/Kesden/index.html
20 How fair play works? Apple iTunes DRM Dilemma available at www.roughlydrafted.com/.../2A351C60-A4E5-4764-
A083-FF8610E
21 Advantages of DRM; 2000-2013. EZDRM, Inc.; available at https://www.ezdrm.com/html/advantages.asp

SILVERLIGHT DRM22 powered by PlayReady technology, is the newer version of DRM, which
has grown from the extensive experience Microsoft has in the DRM industry. This is used in
offline or portable devices using windows. Silverlight DRM has the following features:

o Windows Media Audio and Video 7,8,9,10 (WMA, WMAPro, WMV/VC-1), as well as
MP3 audio playback

o Microsoft has announced support for H.264/MPEG AVC and AAC playback in a future
version of Silverlight coming in early 2009

o Backwards compatibility with WMDRM protected media so you don’t have to re-
package all your content

o AES encryption
o Playback on PC, MAC and LINUX
o Nokia has announced that soon its mobile devices will support Silverlight

DRM/PlayReady
o Playback in Internet Explorer (IE), Safari, FireFox, Navigator, Opera and Chrome web

browsers
o Live Streaming
WINDOWS MEDIA DRM, WMDRM, is the pioneer of Microsoft DRM technology and has been
used by Hollywood, TV Networks and all levels of business. WMDRM is used on devices
commented to the internet.

How does it work23: When we try to use a protected file in the Player, the Player checks to

see if we have valid media usage rights installed on the computer? If the media usage rights
permit to perform the action that has been requested (for example, syncing the file to a
device), the Player performs that action for you.

If the Player doesn't find valid media usage rights on the computer, or if the rights don't
permit you to perform the action that you've requested, the Player doesn't perform the
action. Typically, the Player will either display an error message that indicates why it couldn't
perform the action or it will display an Error button Picture of the Error button or an
Information button Picture of the Information button next to the protected file that you can
click or point to for more information.

The key features of WMDRM are:

} Playback of Windows Media Audio and Video 7,8,9,10 (WMA, WMAPro, WMV/VC-1)
} Playback on PC, Windows Media Embedded devices such as cell phones and PDA’s

and network devices
} License Metering
} License Chaining
} License Revocation
} Live Streaming


22 Using Silverlight With Windows Media DRM Whitepaper Microsoft
http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved=0CDQQFjAC&url=http%3A%
2F%2Fdownload.microsoft.com%2Fdownload%2F7%2F6%2FD%2F76D540F7-A008-427C-8AFC-
BE9E0C0D8435%2FUsing_Silverlight_with_Windows_Media_DRM-
Whitepaper_FINAL.doc&ei=rtGyUrzwMsa5rgeYpoGwDQ&usg=AFQjCNGZoU-
NJPdgOhRxm_z1cCsGJzTNtw&bvm=bv.58187178,d.bmk
23 Windows Media Player DRM: frequently asked questions; available at http://windows.microsoft.com/en-
us/windows/media-player-drm-faq#1TC=windows-7

} Offline Playback

With Windows Media DRM, content providers can now use license registration and media
file encryption to protect their digital media rights and stay closer to their customers.

Windows Media DRM24, which is designed for use with digital audio and video files and live
broadcasting over the Internet. According to Microsoft, this technology is available for
personal computers, portable devices, and network devices. The software locks digital files
with a unique "license key," and encrypts the files so that it is considerably more difficult to
create pirated copies. The assignment of a unique license key makes it possible to associate
each instance of the Windows Media Player software with one computer; every time a user
wants to play a file, the DRM technology ensures that the user has permission to play that
file by checking the user's license key. The technology also protects the audio stream as it
travels from the media player software to the computer's sound card (to prevent programs
from copying content from the audio stream), and provides ways for content owners to
specify different rights for different types of devices. Finally, Windows Media DRM may
"control license start times, stop times, and duration" and create purchase, rental, and
subscription plans for consumers.

3.3.4 CHALLENGES FACED BY MICROSOFT DRMS:

I n 200625, Microsoft filed a suit against the unidentified programmers who created FairUse4WM,
a hack to versions 10 and 11 of Windows Media DRM (WM DRM). Microsoft alleged that the
programmers (known only by the nom de keyboard "viodentia") infringed copyright by using
some of the company's unpublished source code for WM DRM. The source code presumably
includes an indication of where Microsoft hides encryption keys for WM DRM. Microsoft introduced
Patches i.e. fixes to the DRM infringement.

Interestingly, Microsoft sued these hackers for stealing source code rather than for circumventing
DRM under the DMCA (17 USC 12.01), suing under the DMCA would be a tacit acknowledgement
that WM DRM is hackable, an acknowledgement that Microsoft clearly would not care to make.

Microsoft gave up its lawsuit against 'viodentia' early in April 2007, after the company said it had no
success in tracking the user down. Given that this crack appears to be quite virile, we may be in for
another round of lawsuits, patches and cracks26.

3.4 EVOLUTION OF DIGITAL RIGHTS MANAGEMENT


24 Supra Note 51
25 Microsoft's solution to having its DRM hacked: sue; By David Berlind for Between the Lines | September 27, 2006;
available at http://www.zdnet.com/blog/btl/microsofts-solution-to-having-its-drm-hacked-sue/3680
26 Confirmed: Microsoft’s Windows Media DRM cracked (again); by Ken Fisher - July 15 2007; available at
http://arstechnica.com/security/2007/07/confirmed-microsofts-windows-media-drm-cracked-again/

he decisive step came from the World Intellectual Property Organisation (“WIPO”) copyright
treaty adopted in Geneva on 20 December 199627. In 1996, two treaties were adopted by

T consensus by more than 100 countries at WIPO: the WIPO Copyright Treaty (WCT) and the

WIPO Performances and Phonograms Treaty (WPPT) (commonly referred to as the "Internet
Treaties")28. The treaties, each having reached their 30th ratification or accession, both have
entered into force: the WCT on March 6, 2002, and the WPPT on May 20, 200229.

The WIPO Internet Treaties are designed to update and supplement the existing international
treaties on copyright and related rights, namely, the Berne Convention and the Rome Convention30.
They respond to the challenges posed by the digital technologies and, in particular, the
dissemination of protected material over the global networks that make up the Internet. The
contents of the Internet Treaties can be divided into three parts:

Incorporation of certain provisions of the TRIPS Agreement31 not previously included
explicitly in WIPO treaties (e.g., protection of computer programs and original databases as
literary works under copyright law);
Updates not specific to digital technologies (e.g., the generalized right of communication to
the public); and
Provisions that specifically address the impact of digital technologies.

Thus, Article 11 on Technological Measures clearly states: “Contracting Parties shall provide
adequate legal protection and effective legal remedies against the circumvention of effective
technological measures that are used by authors in connection with the exercise of their rights under
this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not
authorized by the authors concerned or permitted by law”. And article 12(1) on Management
information states: “Contracting Parties shall provide adequate and effective legal remedies against
any person knowingly performing any of the following acts (...): (i) to remove or alter any electronic
rights management information without authority; (ii) to distribute, import for distribution,
broadcast or communicate to the public, without authority, works or copies of works knowing that
electronic rights management information has been removed or altered without authority”. The
same obligations are provided for in article 18 and 19 of the WIPO Performances and phonograms


27 WIPO copyright treaty, 20 December 1996 http://www.wipo.int/treaties/en/ip/wct/pdf/trtdocs_wo033.pdf
28 The WIPO Copyright Treaty (WCT) (1996), and the WIPO Performances and Phonograms Treaty (WPPT) (1996).
29 A collection of information resources on WIPO's work as relates to the WCT and WPPT. See generally M. Ficsor,
"Law of Copyright and the Internet," (Oxford, 2001); and Silke von Lewinski and Jörg Reinbothe, "WIPO Treaties
(1996)," (Butterworths Law, 2001)
30 The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
(1961)
31 The World Trade Organization (WTO)'s TRIPS Agreement (the Agreement on Trade-Related Aspects of Intellectual
Property Rights) came into effect on January 1, 1995, and is the most comprehensive multilateral agreement on
intellectual property, covering: copyright and related rights, trademarks including service marks, geographical
indications including appellations of origin, industrial designs, patents including the protection of new plant varieties,
layout-designs of integrated circuits and undisclosed information including trade secrets and test data. The TRIPS
Agreement sets minimum standards of protection to be provided by Members, specifies domestic procedures and
remedies for enforcement of intellectual property rights, and makes disputes about TRIPS obligations subject to WTO
dispute settlement mechanisms (further information and texts are available at
http://www.wto.org/english/tratop_e/trips_e/trips_e.htm

treaty adopted the same day32. Beyond the mere protection of copyright facing technology, the
WIPO introduced the protection of technology that protects copyright.

3.5 DRM IN UNITED STATES OF AMERICA AND EUROPE

D RM is under copyright law. Some relevant aspects of US copyright law have similarities with
those of EU countries by virtue of their common derivation from the WIPO Copyright Treaty
of 1996 (cf. WIPO 1996), which were enacted in the US and EU via the Digital Millennium
Copyright Act (DMCA) of 1998 and European Union Copyright Directive (EUCD) of 2001 respectively.

However, there exists an important difference between the two laws, which leads to opposing ways

of contextualizing DRM within the laws. Most EU countries have Private Copying provisions in their
copyright laws, which allow consumers to create copies of legitimately obtained content for their
own use or that of family members. However, private copying laws can conflict with DRMs that
restrict such activities.33

T 3.5.1 DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) OF 1998
he Digital Millennium Copyright Act (DMCA) is a much in question United States digital rights
management (DRM) law enacted October 28, 1998. The concept behind DMCA was to make
a rational of copyright laws to deal with the distinct problems of regulating digital material.
3.5.2 IMPORTANT PROVISION OF DMCA34:

T 1. CIRCUMVENTING DIGITAL PROTECTIONS (ANTI-CIRCUMVENTION)
he first provision of the DMCA prohibits defeating the access control measure that protects
or limits access to digital information. Defeating the access control measure, or
“circumventing a technological measure,” means to descramble a scrambled work, to decrypt
an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological
measure without the authority of the copyright owner. Access control measures are found in many
digital items such as DVDs, video games, or computer games.

T 2. DISTRIBUTION OF DEVICES THAT CIRCUMVENT DIGITAL PROTECTIONS
his provision bans trafficking in devices that circumvent access controls. That is if an
individual wishes to defeat an access control measure he or she can create software that will
allow unauthorized access to the copyrighted information. Use of such program violates the
first provision and the sale or distribution of this computer program is unlawful as well.

T 3. SELLING ANTI-SECURITY TOOLS


32 WIPO Performances and phonograms treaty, 20 December 1996
http://www.copyright.gov/wipo/treaty2.html
33 Article - The progress of DRM in the United States; By: Bill Rosenblatt, President of GiantSteps, New York, USA,
published at 5 May 2006; found at - http://www.indicare.org/tiki-read_article.php?articleId=193
34 Provisions of DMCA; Found at - http://depts.washington.edu/uwcopy/Copyright_Law/DMCA/Provisions.php

his provision bans trafficking in technology that circumvents technological measures that limit the
ability to reproduce a copyrighted work. For example, an encoding technique that prevents a music
CD from being played and therefore copied on a computer. Thus users would be prevented from
distributing the work-around for playing the CD in a computer. While the device can legally be
played on a computer under the first sale doctrine, trafficking in a device that allows a user to play
the CD on a computer is nonetheless illegal.

T 4. REMOVING COPYRIGHT MANAGEMENT INFORMATION
his provision bans the alteration of copyright management information or providing false
copyright management information. Copyright management information is information
conveyed in connection with a copyrighted work for the purposes of identifying its origin;
such information could include the title, author, name of the copyright owner, terms and conditions
for use of the work, and identifying numbers or symbols referring to the above information. This
does not include information about the user of a work or a copy of the work. The copyright
management information is like serial numbers on commercial products such as computers or cars.
This provision prevents a user from altering this information prior to passing the copyrighted
materials on to others.

T 5. SAFE HARBOURS FROM LIABILITY FOR INTERNET SERVICE PROVIDERS
he fifth and last provision of the DMCA is designed to protect service providers, allowing ISPs
or online service providers to escape liability for the actions of its users so long as they did
not know or have reason to know that their users were violating a copyright holder’s rights.

T EXCEPTIONS:
he DMCA's prohibition on circumvention is not absolute, however. Much like the way in
which the Copyright Act limits copyright owners' exclusive rights with the doctrine of fair
use,35 the DMCA allows for circumvention in certain limited circumstances36. First, the DMCA
includes statutory exceptions, providing that circumvention is not unlawful when —

A library, archive, or educational institution accesses a commercial work only to make a
decision about purchasing that work37;
A federal, state, or local law enforcement officer accesses a work in the course of a lawful
investigation38;


35 U.S.C. S.107. Fair use recognizes the right of the public to make reasonable uses of copyrighted materials without the
copyright owners' consent in situations involving criticism, comment, news reporting, teaching, scholarship, research, and
similar activities.
36 Fair use is only a defense to claims of infringement of the copyright holder's §106 rights. It does not excuse
circumventing a copyright owner's access control device under §1201. See Universal City Studios, 111 F. Supp. 2d at 322
("[T]he decision not to make fair use a defense to a claim under Section 1201(a) was quite deliberate" on Congress's part).
However, §1201 utilizes factors like those in the fair use doctrine in determining whether the Librarian of Congress
should grant an exemption. 17 U.S.C. §§1201(a)(1)(C)(i)-(iv) (considering the copyrighted work's availability for
archival, preservation and educational purposes; the impact of the access control device on criticism, comment, news
reporting, teaching, scholarship and research; and the effect that circumvention of an access control device has on the
market for a work). The DMCA does not bar use of the fair use defense in response to allegations of copyright
infringement. Id. §1201(c)(1).
37 Id. §1201(d).
38 Id. §1201(e).

A person who has lawfully obtained use of a computer program accesses a particular portion
of the program solely to identify and study elements of the program that are necessary for
interoperability and that have not been previously available to him or her39;
A person who made a good faith effort to obtain permission accesses a lawfully obtained
published work to conduct encryption research, provided that doing so does not otherwise
violate the Copyright Act or the Computer Fraud and Abuse Act (Pub. L. No. 99-474)40; or
A person identifies and disables access control devices that also collect or disseminate
personally identifying information about his or her activities41.

Exemptions42 are provided under the DMCA, requiring that Librarian of Congress issue such
exemptions when it is satisfactorily demonstrated that DRM technology has had a significant
negative impact on user ability to use copyrighted work in a non-infringing manner. These rules are
reviewed at three year intervals. After this time, they expire and have to be resubmitted
periodically (at the same three year interval). Current exemptions are listed below;

Audio-visual works that form a part of library of a college or university’s film or media studies
department, educational use in the classroom by media studies or film professors.
Obsolete computer programs and video games which require the original media or hardware
to be accessed. Circumvention is permitted for the purpose of preservation or archival
reproduction of published digital works by a library or archive.
Obsolete dongles prevent access to certain computer programs, if it no longer manufactured
or repaired. Circumvention is such cases is allowed.
E-books which contain access controls and prevent enabling either read-aloud function or of
screen readers that make the text into a specialized format.
Circumvention of computer programs which are in the form of firmware that enables
telephone to connect to a wireless communication network.
Sound recordings, and audio-visual works associated with those sound recordings,
distributed in compact disc format and protected by technological protection measures that
control access to lawfully purchased works and create or exploit security flaws or
vulnerabilities that compromise the security of personal computers, when circumvention is
accomplished solely for the purpose of good faith testing, investigating, or correcting such
security flaws or vulnerabilities.

3.5.3 AUTHORIZATION IS REQUIRED OF THE COPYRIGHT OWNER IN

T ORDER TO LEGALLY CIRCUMVENT A SYSTEM
he anti-circumvention provisions under the DMCA have wide authority to determine who can
circumvent the system. For example, the encryption research exemption, enables a
researcher to request the permission from the copyright holder to engage in circumvention


39 Id. §1201(f). Compare United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1130 (N.D. Cal. 2002) (finding that creating
and marketing a program enabling e-book users to read the book on other computers, print from it, and make back-up
copies was not protected under 17 U.S.C. §1201(f)) with Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d
522, 550 (6th Cir. 2004)(finding that in order to promote interoperability, a manufacturer of toner cartridges that
mimicked the code allowing its toner to work with a competitor’s printers was protected under 17 U.S.C. §1201(f))
40 See Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 321 (S.D.N.Y. 2000)
41 17 U.S.C. §1201(i)
42 Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to
Copyrighted Works; found at - http://www.copyright.gov/1201/2006/index.html

in order to be exempted [1201(g) (2) (C)]. Also, under the DMCA only individuals who are studying,
trained, or employed in encryption research can be considered legitimate researchers under the law
[1201(g)(3)(B)]. Lastly, an encryption researcher is required to immediately notify owner of the
encryption when it is broken [1201(g) (3) (C)]. The security testing exemption requires individuals

engaged in security testing to not only request, but “must” obtain the authorization [1201(j) (1)].
The exemption relating to law enforcement, intelligence, and other government purposes have no
such requirements to notify copyright owners of their activities [1201(e)].

One important limitation to the control given to copyright owners is that manufacturers and
developers of consumer’s electronics, telecommunications, or computing products are not required
to design their products to respond to the digital protection systems implemented by copyright
owners in their works. [1201(c) (3)] In this limitation, the DMCA anticipated the excessive control
that copyright owners might exercise over the products used to play their works in addition to the
works themselves.

M 3.5.4 CONTROVERSY WITH DMCA43

any techniques for protection have accompanied the distribution of copyrighted digital
material over the internet. One such technique is "digital locks," it’s a system behind
which the copyrighted material exists and there is strict access control. These locks are

important to protect material from being pirated or misappropriated. But, these new techniques

combined with the DMCA provisions making it a crime to bypass them, destabilise individual’s ability

to make "fair use" of digital information, and essentially switch the negotiation of the terms of use

for those products with unilateral terms dictated by copyright owners. These self-help technical

protection mechanisms are generally not evident to the purchaser or user until after the sale. In

some cases, producers who use these technical locks to enforce limits on access and use of their

works fail to disclose the terms of use to the purchasers or licensees of their products.

The defences and exemptions to the circumvention prohibition and circumvention device bans
included in the law are fatefully narrow. As a result, the legitimate activities of scientists, software
engineers, journalists, and others have been unflustered. The DMCA has been used by copyright
holders and the government to prevent the creation of third-party software products, silence
computer scientists, and prosecute journalists who provide hypertext links to software code.

In the 2005, Sony BMG Music Entertainment initiated a new DRM which involved a program called

MediaMax. This program only CD purchasers to burn maximum 3 copies of the album and locked
the CD if any more copies were made. The MediaMax DRM software was extremely restrictive,
because the CDs could only be played via Sony BMG’s proprietary music player, which the user had
to install on their computer. None of these details were mentioned on the packaging and the user
came to know of them when greeted with a EULA44. Also, the proprietary player collected

information about users’ listening habits, and sent the information back to Sony BMG.


43 Frequently Asked Questions (and Answers) about Anticircumvention (DMCA); by Samuelson Law, Technology and
Public Policy Clinic; available at http://chillingeffects.org/anticircumvention/faq.cgi#QID91
44 End-User License Agreement - a contract between the manufacturer of computer software and the person who installs
and uses it.

The MediaMax software made the user’s computer security vulnerable and hence allowed hackers
to take control. The ultimate problem with MediaMax was the way in which the software was
installed to the computer: the DRM software changed the kernel of the operating system and
utilized a “cloaking” mechanism that made detection of the software by Windows impossible. Thus,
in order to remove the software, users had to go to Sony BMG’s website, disclose personal
information including their email address, wait for an email from Sony BMG, and then install
additional software to remove the DRM.

Sony was bombarded with a number of class-action lawsuits around the United States, which were
eventually settled. The Federal Trade Commission also took action against Sony BMG45, on the
charges of violating Federal Trade Commission Act, 15 USC 45(a)—by engaging in unfair and
deceptive business practices. However, these charges were similarly settled. There was no resultant
binding legal precedent but it stands as a clear example of DRM that stepped far out of bounds in
the minds of consumers and the US government alike46.

3.5.6 CASES

1. EDELMAN V. N2H2

N 2H2 was sued for a declaratory judgment by Benjamin Edelmen through American Civil
Liability Union, who being a computer engineer, to write computer programs
circumventing the encryption that protects the list of Web sites blocked by N2H2's filtering
software. Accessing the list would then enable him to analyse the effectiveness of the filtering
software. He also desired to publish and distribute the circumvention programs, the decrypted
block list, and other information related to his research. However, he feared that in doing so, he
would be at risk of liability under the DMCA and the non-negotiable N2H2 license.

His reasons for the suit was:
He has first amendment right of free speech which allowed him to do so and to distribute
his research
He did not accept the N2H2’s license which strictly barred reverse engineering of the
software and the giving out of propriety information embedded in the program.
He wished to research without repercussions.

N2H2 in response stated that they believe that Edelman is taking advantage of the legal system to
release their trade secrets. The company believes that they perform a community service by
providing a way for children to access the internet without questionable content. In addition they
argued that Edelmen cannot bring a 'pre-enforcement constitutional challenge through a
declaratory relief action".


45 DOCKET NO. C-4195: COMPLAINT; In the Matter of SONY BMG MUSIC ENTERTAINMENT, a general
partnership." (PDF). June 29, 2007. Retrieved 2012-01-08; available at http://www.ftc.gov/enforcement/cases-and-
proceedings/cases/2007/06/sony-bmg-music-entertainment-matter
46 Sony sued over copy-protected CDs; Sony BMG is facing three lawsuits over its controversial anti-piracy software",
BBC News, November 10, 2005. Retrieved November 22, 2006; available at
http://news.bbc.co.uk/2/hi/technology/4424254.stm

In 2003, the District court granted N2H2's motion to dismiss on the basis that Edelman did not have
the legal right to sue since he had not done the research that may violate the DMCA and had done
nothing to warrant the injunction.

2. REALNETWORKS, INC. V. DVD COPY CONTROL ASSOCIATION, INC.47

T he DVD Copy Control Association (DVD CCA) licenses Content Scramble System (CSS)
technology to manufacturers of DVD devices and software. This license is required to play
back CSS-protected DVDs; CSS licensees are prohibited from producing or selling devices that
circumvent CSS technology.

In the instant case, RealNetworks created a product that allowed users to copy CSS-protected DVDs
to a hard drive. RealNetworks obtained a CSS license from DVD CCA and planned on launching its
product. RealNetworks filed a declaratory action against DVD CCA and several motion picture
studios seeking a judgment that it had not violated the DMCA or breached the CSS license. Several
days later, the court granted defendants’ request for a TRO, preventing the distribution or sale of
the RealNetworks’ product. In May 2009, RealNetworks amended its complaint to allege that the
defendants violated federal and state antitrust laws. In August 2009, the court entered a
preliminary injunction barring RealNetworks from selling its product.

The defendants moved to dismiss the antitrust claims, arguing that:

RealNetworks failed to allege any anticompetitive conduct that is the cause-in-fact of any
injury to RealNetworks and
RealNetworks’ allegations of an antitrust conspiracy fail to meet the pleading requirements
of Fed. Rule Civil Proc.

The court agreed with both of defendants’ arguments. According to the court, the only harm
alleged by RealNetworks is the delay of its product launch from Sept. 8 to Sept. 30, 2008, during
which time it attempted to address the Studio Defendants’ concerns regarding the product. Sale of
RealNetworks’ product was enjoined a few days later by the court’s TRO.

According to the court, “any assertion by Real that the Studios’ refusal to license the copying of
DVDs caused an antitrust injury apart from the delay resulting from the injunctive relief is
contradicted by Real’s assertions that it believed no license was necessary. Indeed, having failed to
come to any arrangement with the Studios, on September 30, 2008, Real simply began selling
RealDVD. To the extent the Studios cooperated with one another and the DVD CCA to petition this
court for relief, such cooperation unambiguously falls within the Noerr-Pennington exception to
liability under the antitrust statutes.”48

The district court decided that RealNetworks violated the anti-circumvention and anti-trafficking
provisions of the DMCA when the DVD copying software RealDVD bypasses the copy protection
technologies of DVD.

3. VIACOM INC. V. YOUTUBE, GOOGLE INC.


47 641 F. Supp. 2d 913 (2009); 2009 U.S. Dist. LEXIS 38221 (N.D. Cal. May 5, 2009)
48 Supra; judgment available at http://www.dvdcca.org/documents/PIOrder081109.pdf

n March 2007, Viacom filed a suit in U.S. District Court for the Southern District of New York
against YouTube and its corporate parent Google for copyright violation seeking more than $1

I billion in damages.

Viacom contended that youtube was involved in "massive intentional copyright infringement" by
availing approximately 160,000 unauthorised clips of Viacom's entertainment programming. Google
relied on the DMCA’s "safe harbor" provision to defend them from liability.

In June 2010, U.S. District Judge passed a summary judgment in favour of YouTube. The court held
that YouTube is protected by the “safe harbour” of the DMCA. Viacom appealed to the U.S. Court of
Appeals for the Second Circuit.

However, in April 2012, the federal Second Circuit Court of Appeals on appeal ruled that Viacom
had produced enough evidence against YouTube to warrant a trial, and the case should not have
been thrown out in summary judgement. The court did uphold the ruling that YouTube could not be
held liable based on "general knowledge" that users on its site were infringing copyright. The case
was sent back to the District Court in New York to be tried.

In 2013, the District Court ruled in favour of YouTube stating YouTube had no actual knowledge of
any specific instance of infringement of Viacom's works, and therefore could not have "willfully
blinded itself". However, it was observed that YouTube did not have the “right and ability to
control” infringing activity because "there is no evidence that YouTube induced its users to submit
infringing videos, provided users with detailed instructions about what content to upload or edited
their content, pre-screened submissions for quality, steered users to infringing videos, or otherwise
interacted with infringing users to a point where it might be said to have participated in their
activity.49"

4. SONY COMPUTER ENTERTAINMENT AMERICA V. GEORGE HOTZ

I n January 2011, Sony Computer Entertainment filed a suit against George Hotz alleging violation
of “Section 1201 of the Digital Millennium Copyright Act” as well as the Federal Fraud and Abuse
Act by facilitating consumers to jailbreak their PlayStation 3 consoles. Hotz argued that because
he had purchased the product, he had every right to do whatsoever with it as he wanted. However,
in next 3 months, Sony and Hotz decided to settle out of court. This also included an injunction
against George Hotz, barring him from hacking any more Sony products.

5. UNIVERSAL CITY STUDIOS, INC. V. CORLEY50

O ne of the first cases to interpret the DMCA anti-circumvention statute, Corley concerned the
use of decryption software that circumvented encryption methods employed by film studios on
DVDs. The court rejected Corley’s argument that the DMCA could be read to allow
circumvention of DRM when the unlocked content is used under the fair use exemptions to

49 "Granting Defendant YouTube's Renewed Motion for Summary Judgment; Entering Judgement that Defendants are
Protected by the Safe-Harbor Provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) from all of
Plaintiffs Copyright Infringement Claims.". Docket Alarm, Inc. April 18, 2013. Retrieved May 9, 2013. Available at
https://www.docketalarm.com/cases/New_York_Southern_District_Court/1--07-cv-
02103/Viacom_International_Inc._et_al_v._Youtube_Inc._et_al/452/
50 273 F.3d 429 (2d Cir. 2001)

copyright infringement. The court further declined to accept the contention that once an individual
has purchased a DVD, and therefore has permission from the copyright holder to view the content,
S. 1201(a)(3)(A) of the DMCA then allowed the purchaser to unlock the content for viewing on other
platforms. However, the court did state that “the DMCA targets the circumvention of digital walls
guarding copyrighted material…, but does not concern itself with the use of those materials after
circumvention has occurred.”51

6. MGE UPS SYSTEMS, INC. V. GENERAL ELECTRIC52

P laintiff in this case brought suit under the DMCA against General Electric for utilizing a
software “crack” that circumvented MGE’s proprietary DRM software. MGE’s UPS machines,
which were utilized by power companies to troubleshoot power outage issues, required that
an external security key be plugged into a laptop in order to use the UPS machine. However,
hackers had made available online software that “cracked” MGE’s DRM solution, removing the need
for a security key. GE employees acquired this crack from an undisclosed source, and began using
the circumvention software.

In a curious turn of events, GE was able to dismiss the DMCA claim brought by MGE. The court,
following the Corley case, found that the DMCA’s prohibitions against anti-circumvention did not
“encompass use of a copyrighted work subsequent to a circumvention merely because that use
would have been subject to a technological measure that would have controlled access to the work,
but for that circumvention. So broad a construction would extend the DMCA beyond its intended
purposes to reach extensive conduct already well-regulated by existing copyright laws.”

7. VERNOR V. AUTODESK, INC.53

T his case illustrates the tension between copyright holders’ desire to protect their works and
the consumer’s belief and desire to have full rights in the product they’ve paid for, including
the right to exercise the First-Sale Doctrine. Timothy Vernor purchased a copy of Autodesk’s
software at a yard sale, and subsequently listed the software for sale on eBay. Autodesk requested
that the listing be removed, which prompted this suit.54

Autodesk premised their argument on the claim that the software itself was never actually sold to
consumers, only a license to use the software. Vernor countered with the argument that he had
never actually installed the software itself or purchased the software from Autodesk, and therefore
was not subject to any licensing agreements or restrictions.

The court sided with Autodesk, despite the above argument. The opinion states that Autodesk only
sells a license to use the work, and that the original owner of the work was not entitled to sell that
license to Vernor in the first place, meaning that there had not been a transfer of title. Vernor,


51 Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001), available at
http://scholar.google.com/scholar_case?q=273+F.3d+429&hl=en&as_sdt=2,34&as_vis=1&case=5930508913825375010
&scilh=0.
52 622 F.3d 361 (5th Cir. 2010); MGE UPS Systems, Inc. v. General Electric, 622 F.3d 361 (5th Cir. 2010), available at
http://scholar.google.com/scholar_case?case=1065324830275964576&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
53 621 F. 3d 1102 (9th Cir. 2010).
54 Vernor v. Autodesk, Inc., 621 F. 3d 1102 (9th Cir. 2010), available at
http://scholar.google.com/scholar_case?case=10742056384168408518&hl=en&as_sdt=2,34&as_vis=1.

therefore, was not entitled to sell what he did not rightly own, and was precluded from listing the
software for sale on eBay.

The court premised its ruling on the holding that “a software user is a licensee rather than an owner
of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly
restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.”

8. AMAZON V. INDIE PUBLISHER55,56

T he complaint, filed in the U.S. District Court for the Southern District of New York, contends
that while Amazon and Random House, Penguin, HarperCollins, Simon & Schuster, Hachette
Book Group, and Macmillan signed contracts with Amazon for the sale of e-books with DRM
that was “specifically designed to limit the use of digital content” to various Kindle devices, the
publishers have not entered into any agreements with independent bricks-and-mortar or
independent collectives to sell e-books. “Consequently,” the complaint states, “the vast majority of
readers who wish to read an e-book published by the Big Six will purchase the e-book from
Amazon.”

The three named plaintiffs are The Book House of Stuyvesant Plaza of Albany, N.Y.; Fiction Addiction
of Greenville, S.C.; and Posman Books of New York City. The rest of the class, the complaint states
are the “hundreds” of independent brick-and-mortar independent bookstores who sell e-books.

The bookstores asked the court to issue an injunction prohibiting the publishers and Amazon from
“selling e-books with device and app specific DRMs,” while also requiring the big six publishers to
allow independent bookstores to directly sell open-source DRM e-books, though it's not clear what
the complaint means by open-source DRM. The suit also applied for an injunction preventing
Amazon from selling DRM specific, or non-open-source, dedicated e-readers, alternative e-reader
devices, and apps.

Among the issues, the suit filed by Creizman PLLC of New York and Blecher & Collins of Los Angeles,
asked the court to examine whether the publishers and Amazon entered into a series of contracts
which "unreasonably retain trade and commerce" in the e-book market, and whether Amazon had
unlawfully monopolized or attempted to monopolize the e-book market.

A federal judge in New York dismissed the claims of independent bookstores that Amazon and the
big publishing houses conspired to create a monopoly by using technical measures to ensure that e-
books bought on Amazon could only be read on Kindle devices and apps.



3.5.7 FAIR USE57,58


55 Indie Booksellers Sue Amazon, Big Six over E-book DRM by Jim Milliot Feb 20, 2013; available at
http://www.publishersweekly.com/pw/by-topic/digital/content-and-e-books/article/56042-indie-booksellers-sue-amazon-
big-six-over-e-book-drm.html
56 Indie bookstores lose case over DRM on Amazon Kindle By Jeff John Roberts Dec. 10, 2013; available at
http://gigaom.com/2013/12/10/indie-bookstores-lose-case-over-drm-on-amazon-kindle/

hile copyright law gives creators of their works the exclusive right to engage in and to
authorize the reproduction, distribution and performance or display of the works,

W copyright law also allows other individuals to use a copyrighted work without the

copyright owner's permission for purposes such as criticism, comment, news reporting, teaching,
scholarship or research59. However, "there is no bright line test for determining whether any
particular use is a 'fair use' or is instead an act of copyright infringement."

In the Copyright Act of 1976, Congress established a four-pronged test requiring courts to determine
whether a use of a copyrighted work was a fair use. They are (1) the purpose and character of the
use; (2) the nature of the work; (3) the amount and substantiality of the portion used in proportion
to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or
value of the copyrighted work.

Critics of the DMCA have often noted the absence of an explicit exception for circumvention to
enable fair use.

Section 103(c)(1) of the DMCA (17 U.S.C. Sec. 1201 (c)(1)) does state that nothing in this section
shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use,
under this title. However, a violation of the anti-circumvention provisions of the DMCA is not itself
copyright infringement and therefore it is unclear whether fair use can be raised as a defense in
circumvention cases.

Courts have come out both ways on the issue. Some have held that the anti-circumvention
provisions can only be violated when the circumvention has a connection to copyright infringement.
For example, in Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting Inc.60, the Federal
Circuit held that a copyright holder must show a connection to copyright infringement in order to
succeed in a claim under the DMCA. Similarly, in Chamberlain Group, Inc. v. Skylink Technologies,
Inc.61 the court held that distribution of a circumvention device (in that case a garage door opener)
did not violate the anti-circumvention provisions because its use did not lead to any copyright
violation. However, in a number of cases involving DVD decryption courts have held that there is no
fair use defence in circumvention cases. In Universal City Studios v. Reimerdes62, the court stated
that if Congress had meant the fair use defence to apply to such actions, it would have said so.

The US in its copyright laws, has no Private Copying. Instead, it has two relevant concepts: Fair Use
and First Sale.

Arguments over Fair Use also affects another part of US copyright law, the aforementioned DMCA.
Although the primary purpose of DMCA was to bring the US into compliance with the WIPO Treaty,
it is mainly known as shorthand for one of its provisions (USC 17 §12.01, also known as "DMCA


57 FAIR USE AND DIGITAL RIGHTS MANAGEMENT IN THE LIGHT OF U.S. LAWS; Prof. (Dr.) Tabrez Ahmad &
Ruhi Chanda; Electronic copy available at: http://ssrn.com/abstract=1839350
58 Article - The progress of DRM in the United States; By: Bill Rosenblatt, President of GiantSteps, New York, USA,
published at 5 May 2006; found at - http://www.indicare.org/tiki-read_article.php?articleId=193
59 Declan McCullagh & Milana Homsi, Leave DRM Alone: A Survey of Legislative Proposals Relating to Digital Rights
Management Technology and Their Problems, 2005 Mich. St. L. Rev. 317, 318 (2005).
60421 F.3d 1307, 1318-19 (Fed. Cir. 2005)
61 381 F.3d 1178 (Fed. Cir. 2004)
62 111 F. Supp. 2d 294, 322 (S.D.N.Y. 2000)

1201"), which criminalizes distribution of technology for circumvention (hacking) of DRM schemes –
which are known as Technical Protection Measures (TPMs) in the law.

DMCA 1201 forbids circumvention of TPMs even if the purpose of the circumvention turns out to be
one that a court finds to be Fair Use. It comes down to a question of whether content rights holders
or consumers should get the benefit of the doubt about content uses. The media industry feels that
allowing exceptions to the anti-circumvention law (beyond the current narrow and temporary
exceptions for things like encryption research and accessing content in obsolete data formats)
undermines DRM by making those exceptions subject to court decisions, and therefore, as a
practical matter, gives the benefit of the doubt to consumers.

First Sale, on the other hand, says that once someone has legitimately obtained a copyrighted work,
the publisher of that work can have no further claim or influence on any further distribution of the
work. First Sale law has thus enabled such services as public libraries, video rental stores, and so on.
Media industry interests argue that First Sale does not apply to digitally distributed works (as
opposed to physically distributed digital works, such as CDs and DVDs) because they are made
available under license agreements (EULAs or "clickwrap" agreements) and not via copyright.
Therefore, First Sale currently does not apply to content packaged with DRM.

The gist of section 1201 is to create three anti-circumvention bans, in order to strengthen copyright
proprietors. Other portions of that same section, however, also protect fair use. One sub-section is
designed to ensure that the judicial extension of fair use to reverse engineering not be undercut63.
Another aspect of 1201 ensure the continuation of the interpretation that over-the-air taping of
analogue television programming as within the fair use doctrine.

I 3.5.8 SECONDARY INFRINGEMENT LIABILITY
f someone infringes copyright and another party is somehow involved, the latter party could be
legally liable; this is called secondary liability.

The legal standard that administers applicability of secondary liability to technology providers in
the US is the 1984 Supreme Court decision in Sony v. Universal (cf. Sony 1984), known as the
Betamax case because it established the legality of Sony’s Betamax videocassette recorders over
the film industry’s objections. With Betamax, the Supreme Court established the principle of
"significant non-infringing uses," meaning that if a technology can be shown to have significant uses
that do not infringe copyright, the maker or distributor of that technology should not be liable for
infringement.

Despite Betamax, a federal appeals court found that both contributory and vicarious liability applied
to centralized peer-to-peer file-sharing networks (i.e., file-sharing services that maintain central
directories of files available) in its 2001 decision in A&M Records v Napster (cf. Napster 2001). As a
result, developers created file-sharing network software that did not rely on central directories,
such as Grokster, Morpheus, BearShare, and LimeWire. There was no theory of secondary liability
that applied to the developers of the client software for these networks.


63 One reverse engineering as fair use under previous law, see Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1520-
21 (9th Cir. 1992), which held that reverse engineering was a fair use under the Copyright Act of 1976.

Many DRM vendors express frustration with the imprecision surrounding fair use. Often they
exclaim, with some exasperation, "Define fair use for me, and we'll express it in the Ôbusiness
rules.'"

Fair use, however, cannot be defined with precision. The statutory four factor test, like, "effect on
the market" and "commercial/non-commercial" are concepts not easily expressed in specific
business rules. The problem is especially vexing once you recognize that "fair use" has changed over
time, and that it is vital that it continue to be able to evolve.

The fair use doctrine operates as a "safety valve" not just for free expression, but also to mediate the
tension between copyright and new technologies. As new technologies develop, courts generally
have the first opportunity to apply copyright law to them, with Congress lagging behind. This spares
the public, technologists, and copyright owners from having to apply to Congress for a legislative
solution for each new technology that is developed. In this way, the fair use doctrine plays an
important role in preserving a space for innovation and consumer experimentation, while leaving
the final word to Congress.

LINKING TO INFRINGING CONTENT: The law is currently unsettled with regard to websites that

contain links to infringing material; however, there have been a few lower-court decisions which
have ruled against linking in some narrowly prescribed circumstances. One is when the owner of a
website has already been issued an injunction against posting infringing material on their website
and then links to the same material in an attempt to circumvent the injunction. Another area
involves linking to software or devices which are designed to circumvent of (digital rights
management) devices, or links from websites whose sole purpose is to circumvent copyright
protection by linking to copyrighted material64.

A 3.5.9 EUROPEAN UNION COPYRIGHT DIRECTIVE (EUCD) OF 200165
t the European level, DRMs are regulated by Directive 2001/29/EC on the harmonization of
certain aspects of copyright and related rights in the information society (“the Directive”)66.
This Directive aims at adapting copyright legislation to reflect technological developments
and to transpose into European Community law. The obligations on technological measures and
rights-management information have been transposed by Articles 6 and 7 of the Directive.

According to Article 6 of the Directive, Member States are obliged to provide “adequate legal
protection” against:

Circumvention of effective technological measures (Article 6(1)); and
Trade in circumvention tools (Article 6(2)).


64 "Linking to infringing content is probably illegal in the US". WebTVWire. 2006-09-12. Retrieved 2006-10-12.
65 DIGITAL RIGHTS MANAGEMENT SYSTEMS (DRMs): RECENT DEVELOPMENTS IN EUROPE by Francisco
Javier Cabrera Blázquez; available at http://www.nyls.edu/documents/media_center/archives/vol-17-no-1-blazquez-
article.pdf
66 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information society. Official Journal L 167 , 22/06/2001 P. 0010 – 0019,
available at
http://europa.eu.int/eurlex/ lex/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

The above sections of Article 6 pose some interpretation problems. First, the Directive does not
define “adequate legal protection.” In fact, Member States alone are responsible for deciding the
level of protection considered to be “adequate.”

According to Article 6 of Directive 2001/29/EC, the act of circumvention must be carried out “in the
knowledge, or with reasonable grounds to know, that one is pursuing that objective.” This can be
difficult. For example, some DVD players running on the Linux operating system include DeCSS, a
descrambling tool to crack CSS protected DVDs67. If the user does not know that there is an illegal
circumvention tool included in his or her software program, then this act will not be considered as a
circumvention act. In this sense, the user does not necessarily know that the DVD he or she wants
to play is CSS protected.

The term “technological measures” is to be understood as “any technology, device or component
that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of
works or other subject-matter, which are not authorized [sic] by the right-holder [sic].” These
measures are deemed effective “where the use of a protected work or other subject-matter is
controlled by the right-holders [sic] through application of an access control or protection process . .
. which achieves the protection objective.”

In regards to circumvention tools, the Directive imposes on Member States, the obligation to
provide adequate legal protection against their “manufacture, import, distribution, sale, rental,
advertisement for sale or rental, or possession for commercial purposes.” Circumvention tools are
“devices, products or components”, as well as the “provision of services” that:

Are promoted, advertised or marketed for the purpose of circumvention;
Have only a limited commercially significant purpose or use other than to circumvent; and
Are primarily designed, produced, adapted or performed for the purpose of enabling or
facilitating circumvention.

In principle, the Directive only targets commercial activities. However, the Directive also allows
Member States to prohibit the private possession of circumvention tools68.

Article 7 of Directive 2001/29/EC mandates Member States to provide adequate protection of
rights-management information. In essence, this is “any information provided by right-holders [sic]
which identifies the work or other subject-matter referred to in this Directive or covered by the sui
generis right provided for in Chapter III of Directive 96/9/EC, the author or any other Right-holder
[sic], or information about the terms and conditions of use of the work or other subject-matter, and
any numbers or codes that represent such information.” This applies when the information
mentioned above is associated with a copy of, or appears in connection with, the communication to
the public of, a work or other subject-matter referred to in this Directive or covered by the sui
generis right provided for in Chapter III of Directive 96/9/EC.

The following actions are forbidden by the Directive:


67 In order to avoid liability, most Linux-based DVD players do not include DeCSS so that the user has to find and install
DeCSS for themselves. For more information on CSS see http://www.dvdcca.org/faq.htm
68 See Directive, Recital 49.

The removal or alteration of any electronic rights-management information.
The distribution, importation for distribution, broadcasting, communication or making
available to the public of works or other subject-matter protected under this Directive or
under Chapter III of Directive 96/9/EC from which electronic rights-management information
has been removed or altered without authority.

U 3.5.10 DRM REGULATION IN UNITED KINGDOM69
nited Kingdom abides by the European Union Copyright Directive (EUCD) of 2001. The UK
Patent Office released a consultation paper on August 2, 2002 concerning implementation
of the EUCD. The consultation paper summarized the impact of the EUCD, indicated the
amendments to be made to the Copyright, Designs and Patents Act, 1988 (“the UK Act”) and invited
public comments on the draft amendments by October 31, 200270. Due to the overwhelming
responses that the UK Patent Offices received, they postponed the implementation from March 31,
2003 49 to June 18, 2003 and it was postponed on an “as soon 71as possible” basis. However, as
aforementioned, the 2003 Regulations have come into effect as of October 31, 2003 to implement
the EUCD.

Sections 29672 through 299 of the UK Act contained provisions that broadly prohibited the
circumvention of copy-protection devices, including those for computer programs, scrambling of
encrypted transmission or reception of conditional access services, including trafficking in devices or
services to aid in such endeavours73.The past S. 296 applied only when copies of a copyrighted work
were issued to the public in an electronic form which was copy protected. Further, s. 296 pertained
to the manufacture and distribution of circumvention devices and not the use of circumvention
devices on technological measures.

The EUCD expands the scope of protection available to copyright owners. Firstly, the EUCD applies
to all types of technological measures, and is not restricted to those currently under the UK Act.
Secondly, the EUCD applies to technological measures used on copyrighted works in any form, and
not necessarily in electronic form. Thirdly, the EUCD also proscribes the very act of circumvention
and the use of circumvention devices to circumvent technological measures. The consultation paper
proposed that s. 296 of the UK Act be reworded to apply only to computer programs, and new ss.
296ZA – 296ZD be added.


69 UK’S IMPLEMENTATION OF THE ANTI-CIRCUMVENTION PROVISIONS OF THE EU COPYRIGHT
DIRECTIVE: AN ANALYSIS; By Aashit Shah; available at
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1107&context=dltr
70 UK Patent Office, EC Directive 2001/29/EC on May 22, 2001 on Harmonisation of Certain Aspects of Copyright and
Related Rights in the Information Society: Consultation Paper on Implementation of the Directive in the United
Kingdom,at
http://www.patent.gov.uk/about/consultations/eccopyright/pdf/2001_29_ec.pdf
(Aug. 7, 2002) [hereinafter Consultation Paper]
71 FOUNDATION FOR INFORMATION POLICY RESEARCH, IMPLEMENTING THE EUROPEAN UNION
COPYRIGHT DIRECTIVE, at http://www.fipr.org/copyright/guide/eucd-guide.pdf
[hereinafter EUCD Guide]
72 Section 296 Copyright, Designs and Patents Act 1988; available at
http://www.legislation.gov.uk/ukpga/1988/48/section/296
73 See Brian W. Esler, Technological Self-Help: Its Status Under European Law and Implications for U.K. Law,
PRESENTATION AT THE 17TH BILETA ANN.CONF., Apr. 5-6, 2002, available at
http://www.bileta.ac.uk/02papers/esler.html
.

Section 296ZA prohibited circumvention of a technological measure on a copyrighted work,
provided the following conditions were satisfied:

The work must be a work other than a computer program;
The copies must be issued or communicated to the public by or with a license of the
copyright owner;
Effective technological measures should have been applied to the copies
A third person must circumvent the technological measures with the knowledge or having
reason to believe that he is circumventing the measures.

The implementation of this provision would, amongst other things, make it illegal to decrypt the CSS
on DVDs or even break their “region locks.”

Section 296ZB proposed to make it an offence to facilitate or enable the circumvention of an
effective technological measure. Any person who performs any of the following activities relating to
a device, product or component which is primarily designed, produced, or adapted for the purpose
of enabling or facilitating the circumvention of effective technological measures is criminally liable:

makes for sale or hire;
Imports otherwise than for private or domestic use;
Sells or lets for hire, offers or exposes for sale or hire, advertises for sale, possesses or
distributes in the course of business; or
Distributes otherwise than in the course of business so as to affect the copyright owner
prejudicially.

In Sony Computer Entertainment v Paul Owen and others74, the defendants imported a computer
chip from Russia called "The Messiah Chip" which could be inserted into Sony Playstation games
consoles and enabled them to play disks from any region as well as circumvent various copy
protection encryptions on the disks.

Sony asserted that the sale of the chip was contrary to section 296 of the Copyright, Designs and
Patents Act 1988 as it constituted a means for circumventing copy protection.



The defendant's case was essentially that the device extended beyond mere protection of copying
of copyright works. If you put a Messiah into a Sony PlayStation, the PlayStation would be able to
run with independent software devised by people who have no connection with Sony or with copies
said to be backup copies which some people might wish to make of any Sony game they have got in
case the disk they have got becomes corrupted or destroyed. They would also be able to play games
imported from outside Europe, whether made with Sony's licence or not.

The Court held-


74 [2002] ECDR 27; [2002] EMLR 34; [2002] EWHC 45; available at http://www.ipo.gov.uk/ipcass/ipcass-
alphabetical/ipcass-alphabetical-o/ipcass-sony.htm ; This case was applied in Phonographic Performance Ltd v. Reader
[2005] EWHC 416.

The encryption on the disks that the Messiah was intended to circumvent was clearly a copy
protection device;
None of the exceptions to infringement in the act applied to protect the defendants; and
That thus the liability under section 296 was made out.

In Phonographic Performance Ltd v. Reader75, the claimant had in the past obtained an injunction
to prevent the defendant broadcasting without their licence musical works belonging to their
members at his nightclub. The defendant had obtained a licence, but had not renewed it. The
claimants in this action sought additional damages under S.97.

However it was held, where the underlying infringement is established to the standard required to
support an application to commit for breach of an injunction, then there is no arguable defence to a
claim for copyright infringement; and the circumstance that the infringements complained of are
committed in breach of a Court Order render either an enquiry as to additional damages or, in a
proper case, a summary award of additional damages to the copyright owner. In this case the court
awarded as additional damages the costs of the enquiry agents and a sum equal to the unpaid
licence fees down to the date of the application to commit.

3.6 DIGITAL RIGHTS MANAGEMENT IN INDIA

I ndia is not a signatory to either of the WIPO internet treaties and hence, is not under any
incorporate any DRM measure in its domestic legislations. Indian Copyright Act did not have any
provisions dealing with Digital Rights Management until 2012. The Copyright Amendment Bill
201076 proposed to add three sections i.e. section 2(xa), 65A and 65B in the existing Copyright Act.

Section 2(xa) – Rights Management Information to mean; (a) the title or other information
identifying the work or performance; (b) the name of the author or performer; (c) the name
and address of the owner of rights; (d) terms and conditions regarding the use of the rights;
and (e) any number or code that represents the above information; but does not include any
device or procedure intended to identify the user.

Section 65A - The concept of Technological Protection Measures, i.e. measures used to
enforce restrictions on the use of copyrighted material.
Section 65B - Protection of Right Management Information. Criminal and monetary liabilities
against any person who removes or alters or circumvents the technological measures or right
management information applied for the purpose of protecting any of the rights conferred by
the copyright Act, with the intention of infringing those rights.

With exceptions
a) Acts, not specifically prohibited in the act.


75 [2005] EWHC 416; available at http://swarb.co.uk/phonographic-performance-ltd-v-reader-chd-22-mar-2005/
76 Copyright (Amendment) Bill 2010; available
https://docs.google.com/viewer?url=http://ns.ibnlive.in.com/embeds/files/1205/copyright-amendment-bill-
2012.pdf&chrome=true

b) Doing an encryption research or conducting a lawful investigation or circumventing

technological measures for identification or surveillance of a user or taking measures in the

interest of the national security77.



T 3.6.1 COPYRIGHT (AMENDMENT) ACT 201278

he Copyright (Amendment) Act 2012, was passed by the Lok Sabha (lower house of
Parliament) on 22 May 2012.



Firstly Section 2(xa) has been added to define Rights Management Information, which means-

a) The title or other information identifying the work or performance;
b) The name of the author or performer;
c) The name and address of the owner of rights;
d) Terms and conditions regarding the use of the rights; and
e) Any number or code that represents the information referred to in sub-clauses (a) to (d), but

does not include any device or procedure intended to identify the user;

Secondly, the 65A has introduced TPM. Clause (1) of the new section criminalizes the circumvention
of an effective TPM with the intention of infringing any of the rights conferred by the Act. Offenders
shall be punishable with imprisonment for up to two years and fines (section 65A(1)). Clause (2)
gives out few exceptions to this rule. Under sub-clause (a) exempts anything that is not expressly
prohibited by the Act. A proviso to this sub-clause conditions the operation of the general exception
to the maintenance of complete records and particulars, of the person performing the
circumvention, by anyone facilitating such circumvention.

Sub-clauses (b) to (g) list specific exceptions to criminal liability for circumvention, for example,
encryption research (s 65A(2)(b)), lawful investigations (s 65A(2)(c)), authorized cyber-security
testing (s 65A(2)(d) and (e)), user identification or surveillance (section 65A(2)(f)) and in interests of
national security (s 65A(2)(g)).

Example, unauthorised circumvention of Music files or e-books, jail breaking of Sony play-stations of
Apple I-pod.

Thirdly, 65B make available for the protection of RMI. The section is divided into two parts79:

(i) Knowledge of unauthorized removal of any RMI [65B(i)] and


77 See section 65A(2)
78 The Copyright (Amendment) Act, 2012; available at
http://copyright.gov.in/Documents/CRACT_AMNDMNT_2012.pdf

79 India's new copyright law: the good, the bad and the DRM
Authors: Tarun Krishnakumar and Kaustav Saha (National Law School of India University, Bangalore, India) ; available
at http://jiplp.blogspot.in/2012/12/indias-new-copyright-law-good-bad-and.html

Knowledge of distribution, broadcasting or communication to the public of any work or
performance with the knowledge that the RMI has been removed or altered without
(ii) authority [65B (ii)],

(iii) Being made offences punishable with imprisonment for up to two years and fine. The
proviso to this section enables the copyright owner whose interests have been affected
by the removal of RMI to seek civil remedies under Chapter XII of the Act.

For example, Is A knowingly removes RMI from a music file and/ or distributes, broadcasts, any
information of work with the knowledge and intention to remove or alter RMI without authority
over the internet or else where, he shall be punishable under this section.

3.6.2 CASES

SONY COMPUTER ENTERTAINMENT EUROPE LTD V. HARMEET SINGH AND OTHERS.

S ony Computer Entertainment Europe ltd. (plaintiff) in this case contended that Harmeet Singh
and others (defendants) were selling the home entertainment systems by making
modifications and up-loading pirated soft-wares in the form of games to the computer, by
which their copyright was being infringed. Sony Computer Entertainment Europe ltd. is the
registered proprietor of various trademarks, details of which have been extracted in the plaint. It
was also explained in the plaint, as to how the defendants systematically un-locked the system and
modified the original equipment and make it ready for use with the pirated soft-ware. The
defendants’ jail-Break software broke the encrypted code on the original machines and made them
ready to be used for up-loading all pirated games which are also being provided by the defendants
at an extra cost. This act of overriding the encrypted code by introducing the Jailbreak software
amounts to circumvention of Technological Protection measures which in turn violates the
copyright of the plaintiff in software of its operating system.

The Delhi High Court in 2013, passed an ex-parte injunction against the defendants for

circumventing Technology Protection Measures (TPM’s) in the Sony Playstation 3 and other Sony
game consoles80. The court expressly references the anti-circumvention laws in the Copyright

Amendment Bill and authorises a Local Commissioner to seize necessary equipment and determine

if they are counterfeit.

The order results in recognising two illegal acts:

1. Modification without consent
2. Introduction of pirated copies of games into these system without license.

Since this order was granted after the Copyright (Amendment) Act, 2012 was passed, it is the first
case to legally recognise the introduction of digital locks in hardware or software to protect
copyright in India.

In the instant case, the defendants are stopped from involving in any similar acts including “offering
for sale” and “distributing modified game consoles”. However, if the order is appealed, this case will


80 CS(OS) 1725/2012; available at http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=121349&yr=2012

test the ‘fair balance’ that was sought to be achieved with the importation of the DMCA-styled
Section 65-A, which introduced anti-circumvention provisions, into Indian copyright law.

ANALYSIS:

T here are several ways in which circumvention can be done, Section 65A limits that list of
activities. Therefore, it cannot be extended to protect measures that purely restrict or
control access to material outside of the protection conferred under the Act. Instead, it aims
at prevention of unauthorized copying, broadcasting, communication and the like. Intention to
infringe is a crucial element of this section i.e. mere circumvention is insufficient without the
intention to infringe the rights conferred by the Copyright Act. This could likely increase the burden
when prosecuting alleged offenders, but it could also protect ‘innocent’ or unintended acts of
circumvention from criminal liability.

Unlike the Digital Millennium Copyright Act (DMCA), the Indian Act does not criminalize the
enabling circumvention either directly or through the production of tools which facilitate
circumvention of TPMs. This omission—intentional or otherwise—would ensure that technological
innovation is not adversely affected as has been the case in the United States where technologies
for other purposes which only incidentally allow circumvention have been outlawed81.

Furthermore, under the proviso to section 65A (2) (a), there exists no penalty for a facilitator who
does not maintain records of a circumvention.

To summarize, Section 65A seeks to introduce the anti-circumvention law in India but it has been
worded very ambiguously. It provides too many flexibilities in its language and the exemptions,
which make the law ineffective under many circumstances. Though a very stringent anti-
circumvention law proved to be counter-productive to promotion of creativity in USA and India must
be wary while passing the law, the existing provision is too circumvention friendly and obliterates its
objective82.

The main objective of section 65A is to enable authors of copyrighted works to use encryption
techniques in order to protect their copyrighted works against unauthorised dissemination on the
internet. However, Indian law, in any case, severely restricts the use of encryption technology by
providing that DoT approval is required for use of encryption levels higher than the outdated 40-key
bit length. Today, 128-256-key bit length is required to protect communications from interception83.

Section 65B deals with protection for RMI, which consists any information, for example, the name of
the performer, copyright information or an ISBN number which is used to identify or authenticate
copies of a work or performance. The wording of this section is narrow and provides no exceptions
such as those present in regard to TPMs. Issues that could arise pertaining to this would be instances


81 Supra note 62.
82 Circumventing around anti-circumvention law by sinapse; available at http://sinapseblog.com/2010/05/circumventing-
around-anti-circumvention_06.html
83 The Copyright Amendment Bill 2010: on the death of books and the digital environment; Aparna Viswanathan;
published on 4th July 2011; the Hindu; Available at http://www.thehindu.com/opinion/op-ed/the-copyright-amendment-
bill-2010-on-the-death-of-books-and-the-digital-environment/article2156475.ece

of companies in converting copyright material into formats designed for consumers with
disabilities84.

When comparing this section with the US Digital Millennium Copyright Act, there are numerous
differences. For example, there is ambiguity as to how the term “authority” is construed under the
amended section. Also, the DMCA makes exceptions for such activities by law enforcement,
intelligence or other authorized government personnel, which is not the case in Section 65B. The
exemptions as provided under Section 65A (2), should have also been made applicable in relation to
Section 65B85.

Certain kinds of RMI collect information about users from their devices without any explicit consent.
Section 65B, when read with s 2(xa), prohibits these forms of RMI. This ensures that consumer
privacy is not compromised by the use of RMI. These issues aside, the question of whether criminal
sanctions are warranted for an act potentially as ‘docile’ as removing or altering RMI—which

primarily result in tangible, monetary losses—is one that is likely to remain uncomfortably
unanswered86.

3.6.3 LACUNAS OF DRM PROVISIONS IN INDIA

T he basic defect in drafting of these sections is that they fail to make a regulatory mechanism
governing the preparatory activities, rendering the circumvention acts like manufacture or
import or offer for service of any devices or technology that helps in circumvention of any
DRM design. Enforcement mechanisms can be efficient if they find evidence to prove for
infringement of DRM technique.

To summarize, the amendment is widely worded. It leaves the interpretation on the courts on case
to case basis.

If India faces the issues of DRM hacking or technological breaches, like that of Microsoft, the only
remedy left is legal actions. The courts in India, as well equipped to interpret law, but not
knowledgeable enough to look into the technicality of the DRM infringement. This is because unlike
copyright infringement which restricts distribution of copyrighted material, DRM measures restrict
the very access to the copyright material. Hence, to decide the “access” part of the infringement,
courts will require technical assistance.

3.6.4 DRM PROVISIONS IN COMPLIANCE WITH WIPO87


84 Department-Related Parliamentary Standing Committee On Human Resource Development, Two Hundred Twenty-
Seventh Report On The Copyright (Amendment) Bill, 2010, presented to the Rajya Sabha On 23rd November, 2010,
laid On The Table Of Lok Sabha On 23rd November, 2010, 20.4
85 Copyright Protection in Digital Environment: Emerging Issues by Fareed Ahmad Rafiqi & Iftikhar Hussian Bhat;
nternational Journal of Humanities and Social Science Invention; ISSN (Online): 2319–7722, ISSN (Print): 2319–7714;
available at http://www.ijhssi.org/papers/v2%284%29/version-3/B240615.pdf
86 Supra note 62.
87 THE FUTURE OF COPYRIGHT IN INDIA – A Special reference to software piracy, its challenges and proposal for
reform By Ayyappan Palanissamy; 2011 International Conference on Software and Computer Applications
IPCSIT vol.9 (2011) © (2011) IACSIT Press, Singapore; available at http://www.ipcsit.com/vol9/19-B006.pdf

ection 65A adopts the anti-circumvention provision of Article 11 of the WCT and Section 65B
adopts Article 12 of the WCT. Analysing the amendments, it is observed that the provisions

S introducing anti-circumvention measures and DRM have been closely guarded to include

several exceptions and limitations that concerns India. The proposed amendments have not dealt
with the ‘preparatory acts’ concept of the internet treaties and has only provided for ‘anti-
circumvention only’ provision under section 65A. Section 52 of the Copyright Act, 1957 includes in
itself the principle of limitation and exception as envisaged under Article 10 of WCT. The acts
expressly allowed under Indian law include fair dealing with a literary, dramatic, musical or artistic
work (not including a computer programme) for the purposes of-private and personal use including
research, criticism or review.

3.6.5 RELATION BETWEEN INTERMEDIARY LIABILITY AND DRM:

T he questions of liability have also emerged in relation to other Internet infrastructure
intermediaries, including Internet backbone providers, cable companies and mobile
communications providers88.

Traditionally there exists one form of copyright infringement i.e. primary infringement, where the
person is solely responsible for infringing copyright. As discussed earlier, secondary liability or third
party liability is a concept derived from the US. This concept or theory is a combination of copyright
violation and torts law.

In Sony Corporation of America v Universal Studios8990, Inc., the court observed patent law’s
explicit statutory prohibition against inducing infringement and against contributory infringement,
and held that the absence of express language in the Copyright Act did not preclude third party
liability. The court reasoned that “vicarious liability is imposed in virtually all areas of law, and the
concept of contributory infringement is merely a species of the broader problem of identifying the
circumstances in which it is just to hold one individual accountable for the actions of another.

In Religious Technology Center v Netcom On-Line Communication Services, Inc9192, copyrighted
work of the Church of Scientology to the Internet was uploaded by a former minister. First, he
transferred the information to a BBS computer, where it was temporarily stored before being
copied onto Netcom’s computer and other Usenet computers. Once on Netcom’s computer, the
information was available to Netcom’s subscribers and Usenet neighbours for downloading. Even
after notifying Netcom of the infringement, Netcom refused to deny the subscriber’s access
because it was not possible to pre-screen the subscriber’s uploads, and kicking the subscriber off
the Internet meant kicking off the rest of the BBS operator’s subscribers. Then, the plaintiffs sought
a remedy for infringement under all three theories –direct, contributory, and vicarious.


88 Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (PDF).
Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual
Property Organisation (WIPO). pp. 5–6.; available at https://www.era.lib.ed.ac.uk/bitstream/1842/2305/1/wipo-
onlineintermediaries.pdf
89 464 U.S. 417 (1984)
90 Liability Of Internet Intermediaries For Copyright Violations; available at http://iprsi.blogspot.in/2011/06/liability-of-
internet-intermediaries.html
91 907 F. Supp. 1361 (N.D. Cal. 1995)
92 Supra note 84.

Court held that, Netcom didn’t directly infringed plaintiff’s copyright, since Netcom did not violate
plaintiff’s exclusive copying, distribution, or display rights. On the third party liability theories of
contributory and vicarious infringement, the court held that Netcom would be liable for
contributory infringement if plaintiffs proved that Netcom had knowledge of the infringing activity.
The court then analysed whether Netcom was vicariously liable. Here, once again the court found
that a genuine issue of material fact supporting Netcom’s right and ability to control the uploader’s
acts existed. The court found that Netcom did not receive direct financial benefit from the
infringement. Thus, the court found that the Netcom was not liable for direct infringement, could
be liable for contributory infringement if plaintiffs proved the knowledge element, and was not
liable for vicarious infringement.

3.6.7 INTERMEDIARY LIABILITY IN INDIA

C ontent regulation on the internet in India is scrutinized by the formation Technology
(Intermediaries Guidelines) Rules, 2011 (“Intermediary Guidelines”). The Intermediary
Guidelines govern intermediaries, such as internet service providers, search engines, and
hosts, which play an indispensable role in ensuring free flow of communication and information on
the internet. Since, they are private actors, intermediaries readily remove the questionable content
or prevent access to save themselves from the liability.

The statutes which deals with the issue of intermediary liability is the Information Technology Act
2000 (“IT Act”). However, there are other acts as well, for example, Sections 51(a) (ii), (b) and 63 of
the Copyright Act, 1957 and Section 104 of the Trade Marks Act, 1999 also apply to intermediaries.
Section 79 of the IT Act, which affords intermediaries immunity from liability, allows intermediaries
to claim exemption from liability for offences under general laws such as the Indian Penal Code
(1980) and the IT Act itself93.

Section 2(1) (w), defines intermediary as, "who on behalf of another person receives, stores or
transmits that record or provides any service with respect to that record and includes telecom
service providers, net- work service providers, internet service providers, web hosting service
providers, search engines, online payment sites, online-auction sites, online marketplaces and cyber
cafés”94.

The amendment to the IT act was a reaction to the case Avneesh Bajaj v. state. The court rejected a
petition for annulling the criminal prosecution of the Managing Director of a website, Bazee.com,
which carried a listing for sale of a mobile phone video clip containing pornographic content
involving teenagers. The court found that it prima facie appeared that the website had failed to
exercise due diligence because it did not provide filters to screen pornographic content, and it also
did not have any policy in place to prevent the listing, display or sale of such content on the
website95.


93 Section 79 of the IT Act begins with “Notwithstanding anything contained in any law for the time being in force
...an intermediary shall not be liable...” (emphasis added)
94 IT Act 2000, as amended by the Information Technology (Amendment) Act 2008, Section 2(w).
95 Avnish Bajaj vs State 150 (2008) DLT 765, ¶¶19.3, 19.5. An appeal was preferred from the decision of the Delhi High
Court where the Supreme Court in a recent judgment quashed proceedings against Avnish Bajaj, however, it did not make
any reference to intermediary liability and based its decision solely on the ground that a Director of a company could not

3.6.8 SECTION 79 OF IT ACT96

mended section 79 of the IT Act, requires of receipt of actual knowledge. This has been

A combined with a notice and take down97 duty. There is a time limit of 36 hours to respond to
such a request. If an intermediary refuses to do so, it can be dragged to the court as a co-
accused. Under the Amendment Act the safe harbour provisions is available only to an Internet
service provider where the function of the intermediary is limited to giving access to a
communication network over which information made available by the third party is transmitted or
temporarily stored or where the intermediary does not initiate the transmission, does not select the
receiver of the transmission and does not select or modify the information contained in the
transmission.

Section 79 of the IT (Amendment) Act 2008 thus deals with immunity of intermediaries. It is
purported to be a safe harbour provision modelled on EU Directive 2000/31. The Safe Harbour
provisions found in the IT Act are similar to that found in the US Laws which essentially say that the
intermediaries who merely provide a forum weren't liable for what users did. The only condition
being that they respond promptly to a notice telling them about a violation. If the website took that
file off then they were in the clear.

The Copyright (Amendment) Act of 2012, amended section 52, to add some level of protection to
'transient or incidental' storage of a work or performance either purely in the technical process of
electronic transmission or communication to the public, or for the purpose of providing electronic
links, where such link has not been expressly prohibited by the right holder, unless the person
responsible is aware or has reasonable grounds for believing that such storage is of an infringing
copy. This provision would protect search engines which provide hyperlinks to other websites.

Broadly, this provision would provide protection to Internet intermediaries only when they are
providing transient or incidental storage; they have reasonable grounds for believing that such
storage is not of an infringing copy and the rights holder has not expressly prohibited it. It is not out
of place to state, that the phrasing of the section does leave much to desire in terms of precision
and specificity.

Acquiring John Doe Orders or Ashok Kumar orders which are ex-parte orders against an unknown
infringer or internet service provider, is another process of controlling content on the internet.
These orders stop intermediaries to upload any copyrighted material.

In Reliance Big Entertainment v. Multivision Network and Ors.98 , Reliance Entertainment procured
an order from the Delhi High Court to prevent the illegal broadcast or streaming of its film
'Bodyguard'. It procured a 'John Doe Order99 or Ashok Kumar Order' from the court restraining
websites, cable operators and Internet Service Providers (ISPs) and others from infringing or


have been held liable for an offence under Section 85 of the IT Act. See Aneeta Hada vs M/s Godfather Travels and
Tours, Criminal Appeal No 838 of2008 (Supreme Court, 27 April 2012).
96 India: Intermediaries Under The Information Technology (Amendment) Act 2008; Article by Alaya Legal; available at
http://www.mondaq.com/india/x/225328/Telecommunications+Mobile+Cable+Communications/Intermediaries+Under+
The+Information+Technology+Amendment+Act+2008
97 Notice to the intermediaries to take down the infringing material.
98 CS(OS) 3207/2011; available at http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=269404&yr=2011
99 John Doe Orders are ex parte injunctions ordered against unknown persons.

violating Reliance's copyright by illegally showing the movie. Earlier, the company had procured
similar court order for its last film, 'Singham'100.

3.7 DIGITAL RIGHTS MANAGEMENT: AN ANALYSIS

W idespread of piracy is fatal to copyright laws. The availability of pirated copies provides
advantages to both content owners and users. The users get the copyrighted content at
a very low and affordable cost or even sometimes free of cost. There is access to
information, knowledge and entertainment.

Content owners, however lose monetary benefits, but get recognition, reputation and popularity,
which would act as a major source of inspiration to create new works and make profit in future
endeavours and in other forms of business. For example, the content owners of motion pictures and
music could make profit through public performances, television shows and theatre shows.

3.7.1 THE DISPUTE AND ITS RESOLUTION101

I f legal protection for DRM systems develops to a stage where piracy could be largely controlled,
the people living in India would get the stick, as they would lose access to information,
knowledge and entertainment. On the other hand strong protection for DRM systems is good for
developed countries because the objectives of copyright law which is to promote the progress of
useful arts would be furthered if piracy is controlled. In the digital world there are no territorial
limits and so different rules can't be framed based on the development status of a nation. This gives
rise to a conflict between the interests of developing countries like India and developed countries.
The developed countries want a strong protection against circumvention of DRM technologies and
the developing countries like India want a weaker protection in order to get piracy advantages. The
interests of both developed and developing countries can't be satisfied in the digital world due to
lack of territorial limits. Under such circumstances, it is sensible to make policies best for the world
as a whole. With a strong DRM system in place the content owners in the world would be
encouraged to do more business on the internet and would gain more profits because of the wide
reach and quality offered by the digital world. Such a scenario would provide good economic
incentives, which would result in an increase in the creation of useful arts. That would be very
beneficial to the society as a whole.

On one hand, if piracy is reduced to a considerable extent, the authors would be encouraged not
only in developed countries but also in developing countries. This would encourage authors who
were not too keen at putting full time efforts in creation of useful arts because of lack of economic
incentives as an end to piracy would increase the economic incentives. Therefore, a strong DRM
system would have a good impact on both developed and developing countries.


100 Update: Files Sharing Sites Blocked In India Because Reliance BIG Pictures Got A Court Order; By Nikhil Pahwa on
Jul 21st, 2011 Available at http://www.medianama.com/2011/07/223-files-sharing-sites-blocked-in-india-because-
reliance-big-pictures-got-a-court-order/
101 Anti-Circumvention laws to protect Digital Rights: An Indian Perspective; Author- Kalyan C. Kankanala1 , Chief
Knowledge officer, Brain League IP Services; available at http://www.brainleague.com/case_studies/digitalrights.pdf

On the other hand, a weak DRM system would help India and other developing countries in getting

access to information but that would reduce creativity all over the world. If there is less creation

there would be less information, knowledge and entertainment. Such a result is not good for the

society.

3.7.2 ILLUSTRATING AMBIGUITY102:

1. THE VCR - In 1976, Universal City Studios and the Walt Disney Company sued Sony, seeking

to have the Betamax VCR impounded as a tool of piracy. In their view, there were virtually no non-
infringing uses of the VCR, since home taping of television was thought to violate the copyright
owner's reproduction right. The Supreme Court in 1984 disagreed, ruling that home taping of
television programs for later viewing ("time-shifting") constituted a fair use.

Two aspects of the Betamax case are important for our purposes. First, most copyright scholars at
the time felt that home taping should not constitute fair use. In particular, it was unprecedented for
a court to find a use to be fair where (1) the copyist reproduced the entirety of a work and (2) did so
for a purely consumptive, non-transformative purpose.

Second, if copyright owners had been able to impose DRM technology on the VCR in 1976, the
Supreme Court would have been denied the opportunity to evolve fair use. While the state of DRM
technology was more primitive in 1976, there were already efforts by motion picture studios to
control video content. For example, during the Betamax case, the motion picture studios argued to
the court that Sony should build a sensor into every VCR that would detect "no copy" signals that
would be embedded into television broadcasts, thereby enabling copyright owners to mark their
movies as "not for copying." Had this DRM solution been adopted, the Supreme Court would have
been denied the opportunity to address time-shifting, leaving this activity under the exclusive
control of copyright owners.

2. THE MP3 AND DITTO.COM - More recent examples, the development of PC technology and

the MP3 music format has given music fans a wide variety of new capabilities. As a result,
electronics manufacturers have begun offering new categories of music products, including MP3
jukeboxes, home music servers, and Internet radio receivers. Each of these technologies, however,
depends upon copying lawfully-obtained digital music, an activity that, unless considered fair use
(or otherwise privileged under the law), would infringe copyright.

The Internet has similarly spawned innovative services that have called on courts to evolve fair use
jurisprudence. For example, copyright litigation recently erupted over Ditto.com, a search engine
that catalogues photographs and other images that can be found on the Internet. Prior court
decisions regarding fair use provided only ambiguous guidance. The Ninth Circuit Court of Appeals
recently concluded that the reproduction of images involved in this activity should be considered a
fair use.

Had DRM technologies blocked these unauthorized experiments from arising in the first place, the
opportunity to further develop the fair use doctrine would never have presented themselves. The


102 Fair Use and Digital Rights Management: Preliminary Thoughts on the (Irreconcilable?) Tension between Them; By
Fred von Lohmann, Senior Intellectual Property Attorney, Electronic Frontier Foundation; found at -
http://w2.eff.org/IP/DRM/cfp_fair_use_and_drm.pdf

public would never have had the benefit of these new technological capabilities, or would only have
received them if copyright owners could be persuaded to authorize them.

3. THE FUTURE: DTV - With these earlier examples in mind, we can better understand the

threat that DRM technologies pose to the future of fair use. If fair use is to continue to evolve, to
create space for free expression, innovation and new uses of copyrighted works, DRM technologies
must somehow accommodate the ambiguity of fair use. Unless the public has the opportunity to
experiment with new technologies, courts will not have the opportunity to test them against the
fair use doctrine. If innovators and consumers are presumptively barred from experimenting
without copyright owner authorization, fair use will become increasingly irrelevant. After all, how
useful is a right to time shift analogue television in a world where all broadcasts are digital and
protected by DRM technologies?

This is not a hypothetical question. An inter-industry group called the Broadcast Protection
Discussion Group (BPDG) is currently drafting standards for mandatory DRM systems for digital
broadcast television (DTV). While these systems may attempt to preserve time-shifting as defined
by the Supreme Court in the 1984 Betamax decision, they will fail to protect the full range of future
fair uses that will be made possible by DTV. What those fair uses might be is difficult to imagine in
advance, just as time-shifting was difficult to imagine in the era before VCRs. Nevertheless, unless
DRM technologies make room for these future fair uses, fair use will have lost much of its ability to
protect the public's side of the copyright bargain.

A 3.7.3 ROLE OF DRM

ccording to Hilts, publishers use DRM technologies “to exploit and manage the rights
inherent in a work. The publisher uses DRM to identify the users of its intellectual property,
to take payment from them, to define the ways in which the content may be used and to

monitor the use to make sure it is within bounds, and finally to prevent illegal copying and

redistribution of the work103.” No technology is 100% secure, DRM provides high level of protection

for copyright.

3.7.4 SHORTCOMINGS AND DEMERITS OF DRM

D RM techniques are not fool-proof and the measure taken under the law can only be
enforced after the infringement takes place. Some shortcomings of DRM are as follows:



METHOD TO BYPASS DRM - There exists many techniques to bypass DRM control on audio

and video content. One simple method to bypass DRM on audio files is to burn the content
to an audio CD and then rip it into DRM-free files. Many software programs have been
developed that intercept the data stream as it is decrypted out of the DRM-restricted file,
and then use this data to construct a DRM-free file. Programs that do this for TiVo ToGo
recordings, iTunes audio, and PlaysForSure songs, however, rely on the user's own key —


103 Digital Rights Management: Pitfalls and Possibilities for People with Disabilities; Elsa F. Kramer; Volume 10, Issue 1,
Winter 2007; DOI: http://dx.doi.org/10.3998/3336451.0010.106; available at
http://quod.lib.umich.edu/j/jep/3336451.0010.106?rgn=main;view=fulltext

that is, they can only process content that the user has legally acquired under his or her own
account.

ANALOG HOLE - All forms of DRM for audio and visual material (excluding interactive

materials, e.g., videogames) are subject to the analog hole, i.e., a user could play a
purchased audio file while using a separate program to record the sound back into the
computer into a DRM-free file format. Illustration: Asus released a soundcard which features
a function called "Analog Loopback Transformation" to bypass the restrictions of DRM. This
feature allows the user to record DRM-restricted audio via the soundcard's built-in analog
I/O connection104.

WATERMARKS can very typically be removed, although degradation of video or audio can

occur.

MASS PIRACY of hard copies can be achieved by bit-perfect copying of a legally obtained

medium without accessing the decrypted content. Additionally, still-encrypted disk images
can be distributed over the Internet and played on legitimately licensed players.

OBSOLESCENCE - When standards and formats change, it may be difficult to transfer DRM-

restricted content to new media. Additionally, any system that requires contact with an
authentication server is vulnerable to that server becoming unavailable, as happened105.

DRM systems do not respect the traditional copyright exceptions and limitations106. DRM limits or
excludes the possibility to fair use (e.g. private copying). According to Tian, the prerequisite of free
use is legal access107. He refers to the Universal City Studios v Corley case in the USA108 in which the
court held that the circumvented DRM device provided access control, and not copy control. He
claims that the implication of the decision is that free use cannot be applied without “free access”.
Further, if a legitimate user may access a work by circumventing a DRM device, this is not possible
in practice, unless the user has sufficient knowledge to break the encryption code. This is because
the anti-circumvention laws forbid trafficking in devices capable of circumventing DRM devices109.

Mazziotti observed that the possible lack of interoperability between two DRM-systems may result
in the user not being able to use a DRM-protected work on a medium using another DRM system –
despite acquiring both lawfully110. There is no single standard for DRM. However, according to him,


104 PC Pro Product Reviews Asus Xonar D2". Pcpro.co.uk. 2007-08-01; available at
http://www.pcpro.co.uk/reviews/network-media-streamers/121497/asus-xonar-d2
105 "MLB Fans Who Bought DRM Videos Get Hosed". slashdot.org. November 7, 2007; available at
http://news.slashdot.org/story/07/11/07/2014253/mlb-fans-who-bought-drm-videos-get-hosed
106 Barczewski, M. 2007, The consequences of DRM for information access and copyright,
Medien und Recht International, 1817-8456. issue 3. Supplement, p. XI.
107 Tian, Y. 2009, Re-thinking intellectual property : the political economy of copyright protection in the digital era,
Routledge p. 230
108 273 F.3d 429 (2d Cir. 2001) – a Norwegian teenager broke the CSS code used on DVDs (by using DeCSS program)
and Corley published this program on the website of his newspaper.
109 Mazziotti, op. cit.; p. 201. Mazziotti refers to the French Mulholland Drive case (the plaintiffcould not copy a film for
private use from DVD to VHS due to the DRM device used on the DVD), where the Paris Court of Appeal held that there
is no subjective right to make a private copy of a protected work, but rather the private copying exception is a mere
defense against infringement claims. However, the court established that this exception prevails over the DRM measure
applied by the rightholder in order to protect his copyright. The French Supreme Court overturned this decision in its
own. Mazziotti argued that the latter court’s decision was unclear. This case became less relevant because French law has
changed afterwards. Private copying was defined as an enforceable use against technical devices.
110 Mazziotti, op. cit.; p. 189

it is crucial to avoid that any of the market stakeholders forces upon the others the use of its DRM
system, thereby creating a de facto standard111.

A further argument against DRM is that it might rob judges of their ex-post freedom to evaluate and
opportunity to decide112. Judges may not be in a position to consider whether or not the user
breached copyright, but rather they may have to automatically establish that the anti-
circumvention provisions have been breached. Therefore, the right holders, as private actors, can
determine the actual scope of the users’ use rights prior to the use of the work113.

Certain DRMs are used to observe and collect user information and conduct. This hampers their
privacy, thus, the protection of privacy greatly depends on the set-up and the management of the
DRM system.

3.7.5 FUTURE DRM DEVELOPMENTS AND SUGGESTIONS

F rom the above discussion it can be concluded that Digital Rights Management measures are
not perfect or fool-proof. With advancement of technology, the complexities of coding and
algorithm, circumventing can be easily done. However, DRM measures and domestic laws of
countries can however try and be more stringent in their enforcement, so that future infringers
dread to violate anyone’s copyright.

Similarly there are certain suggestions made for improvement and future aspects of DRM as follow:
As to the duration of DRM protection, MacQueen suggests that laws should prescribe that
DRM control shall cease upon the expiry of the subsisting copyright114.
In order to deal with the potential threat that DRM causes to privacy, the law should forbid
DRM protection that extends to monitoring personal conduct115.
There are numerous suggestions concerned with the extent of DRM-control. One of these is
to connect the protection of ETMs to copyright infringement (similarly to the protection of
RMIs). However, it is not clear how DRM systems could distinguish based on user’s intent
(e.g. based on user’s own declaration)116. Further, DRM technology may be useful only for
the purpose of accommodating the simplest transformative uses (e.g. quotation), but not
more complex uses (e.g. parody)117.
The scope of exceptions should be broadened based on the so-called fair circumvention
doctrine118. According to this doctrine, users should be allowed to circumvent the technical
measures serving not only rights control but also access control aims. In connection with this,
the manufacturing and marketing of devices used for circumvention should be also exempted
in order to involve also those users who do not have the necessary technical skills119. These


111 Mazziotti, op. cit.; p. 187
112 2011 K. Tivadar: Is There a Future for Digital Rights Management?; available at
http://mujlt.law.muni.cz/storage/1327951384_sb_10-tivadar.pdf
113 Mazziotti, op. cit.; p. 181
114 MacQueen, H. L. 2009.’Appropriate for the Digital Age’? Copyright and the Internet: 2. Exceptions and Licensing. in
ed. Lilian Edwards, Charlotte Waelde: Law and the Internet, Hart Publishing, p 203
115 Mazziotti, op. cit.; p. 34. Mazziotti concludes that the Information Society Directive is not capable of achieving this.
116 MacQueen, op. cit.
117 Mazziotti, op. cit.; p. 217
118 Tian, Y., op. cit.; p 238
119 Tian, Y., op. cit.; p 243

exemptions should only be applied if certain requirements were met (e.g. the copyright
holder does not publish how the users can use the DRM protected content without additional
costs and effort).
It is also proposed that the rights of right holders and users should be balanced through the
following means120. First, judges should be provided with a right to deliberate as to the
righteousness of the applied DRM system in light of copyright and its limitations and
exceptions. Secondly, specific legal mechanisms should be used to enforce such right. For
example, independent bodies should be established that

§ Control the technical measures;
§ Assist users in exercising their fair circumvention right;
§ Avoid any abuses of the fair circumvention exception by users; and
§ Assists courts in issues regarding technical measures.

Thirdly, the involvement of users and the working of market mechanisms should be
strengthened. For example, right holders should be obliged to display on their products if
they applied any DRM system. This would allow users to choose between similar products
based on whether or not DRM is applied or to choose between products offered under
different DRM terms.
Users should have a right of self-help based on which they may lawfully circumvent DRM
protection as far as it restricts fair use. This is based on the US Constitution’s intellectual
property clause that specifies an originality requirement in respect of copyright and on the
US Constitution’s First Amendment that establishes a right to free speech. The contractual
terms contrary to the US Constitution and DRM systems that implement such contracts
should be invalid. Consequently, users may always claim that they legally circumvented a
DRM measure if the measure was over-restrictive121. It is however, applicable only in
countries where the constitutions recognises limited nature of intellectual property rights.

3.8 IN INDIAN CONTEXT

I n all Indian legislation the privacy of an individual is brought into question, because there are no
safeguards against the commercialization of information, and no formal process of redress if an
individual discovers that his information is being used without his consent/prior knowledge.
There exists a need to incorporate (perhaps appropriately in legislation on data protection) a
provision to clearly establish that the collection and commercialization of information and personal
data is prohibited by DRM technologies and host companies, and a method of redress be put in
place122.

Also, the Copyright (amendment) Act, 2012, provides very less exceptions. For example, in DMCA, if
circumvention is done in case of an obsolete phone handset which renders the computer network


120 Tian, Y., op. cit.; p 241
121 Cohen, J. E. 1998, „Copyright and the Jurisprudence of Self-Help, (24) Berkeley Technology Law Journal, p. 1089,
also at http://cyber.law.harvard.edu/property00/alternatives/self-help.html
122 Privacy and the Indian Copyright Act Submitted by Elonnai on Thu, 06/16/2011; available at
http://identityproject.in/blogs/%5Buser-raw%5D/privacy-and-indian-copyright-act

non-functional, then such circumvention is allowed. However, in In Indian act, no such exception is
mentioned. Hence, it’s more on the courts to interpret the issue on case-to-case basis.

If we compare the Sony Play-station cases in US and India, the USA courts passed an injunction
against George Hotz in Sony Computer Entertainment America v. George Hotz for jail-breaking
Sony Play-station, however there was no legal precedent as the case was settled between the
parties. The courts did found the act to fall under section 1201 of DMCA. Similar situation happened,
recently in India in Sony Computer Entertainment Europe ltd v. Harmeet Singh and others. The
courts did find the infringement valid and gave the decision ex-parte. If repealed, this judgement will
be landmark in its own name being the first to take up the issue under the new Amendment act. This
shows that India is following the steps of USA and other WIPO treaties it is signatories to. India
recognizes the seriousness of digital copyright infringement and the judiciary is working its way to
resolve any issue that comes along. However, it still is a new-bee in the area of Digital Rights
Management Measures.

3.9 CHECKLIST

T he Copyright (Amendment) Act, 2012, does not prescribe any procedure for registering a
digital copyright. The protection of digital copyright, however, can be done keeping in mind
certain points. But like USA under Digital Millennium Copyright Act (DMCA), digital or
electronic content, such as e-books, photographs on Web sites and electronic databases are subject
to the same protections under the Copyright Act as non-digital, traditional or analog works. India
under the new amendment act has not faced many disputes as of now, but the wide worded
sections leave it up to the courts to interpret the Act on case-to-case basis.

3.9.1 FOR A DIGITAL COPYRIGHT OWNER

A cquirement of copyright is automatic and no formality as such is needed. However,
certificate of registration of copyright and the entries made therein serve as prima facie
evidence in a court of law with reference to dispute relating to ownership of copyright123.

The moment an original work is created, the copyright is enshrined in the work and the creator
starts enjoying the copyright. But certain important points must be kept in mind.

An undisputable record of the date on which a work was created must be kept.
Work should be registered with the Registrar of copyright in the manner prescribed. There
are rules124 setting out the procedure for the registration of the work. The procedure for
registration is as follows125:

Application for registration is to be made on Form IV ( Including Statement of
Particulars and Statement of Further Particulars) as prescribed in the first schedule to
the Rules ;


123 A HAND BOOK OF COPYRIGHT LAW Government of India, Ministry of Human Resource Development,
Department of Secondary Education and Higher Education; available at
http://copyright.gov.in/Documents/handbook.html
124 Under Chapter VI of the Copyright Rules, 1956
125 Supra note 95

Separate applications should be made for registration of each work;

Each application should be accompanied by the requisite fee prescribed in the
second schedule to the Rules ; and
The applications should be signed by the applicant or the advocate in whose favour a
Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed
by the party and accepted by the advocate should also be enclosed. Each and every
column of the Statement of Particulars and Statement of Further Particulars should
be replied specifically.
Computer Software or programme can be registered as a ‘literary work’. As per Section 2
(o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and
compilations, including computer databases. ‘Source Code’ has also to be supplied along
with the application for registration of copyright for software products126.
A web-site contains several works such as literary works, artistic works (photographs
etc.), sound recordings, video clips, cinematograph films and broadcastings and
computer software too. Therefore, a separate application has to be filed for registration
of all these works127.
When a work128 is published with the authority of the copyright owner, a notice of
copyright may be placed on publicly distributed copies.
In case of Digital Material or Content-

Rights Management Information as defined under section 2(xa) of the Act, must
state the name and address and necessary information of the author. Such RMI if
infringed of modified without author’s knowledge, shall be punishable under
section 65A as explained earlier.

Authors can introduce DRM techniques to their work. A number of elements are
used to secure content, and these are based on cryptographic mathematics. For
example, encryption, public/private keys, watermark, access control,
authentication, secure communication controls, secure content storage, rights
specification language, trust infrastructure etc.
Out of these Digital Watermarks are most promising. Like traditional paper
watermarks, these hare digital bits of watermark buried in the image or
document. These are not visible to human eyes but can be read by special
software. Personalisation of work, for example, university textbooks use specific
look, font, pattern and visible watermark for all textbooks which makes tracking
easier. Such personalisation can also be done on the digital content.
For music files or videos files, techniques like content hashing and content
crawling can be used129.
Creators can –

Make their work available on selected terms and conditions

Access other works available for use and reuse

Make all or some part of work on fee or free basis


126 Frequently Asked Questions; available at http://copyright.gov.in/frmFAQ.aspx
127 Supra note 98
128 “A work means any of the following, namely, a literary, dramatic, musical or artistic work, a cinematograph film, or a
sound recording.” Supra note 95.
129 See page 4.

Make use of DRM system protections
Register your digital copyright like any other literary copyright.
Moral rights - The author of a work has the right to claim authorship of the work and to
restrain or claim damages in respect of any distortion, mutilation, modification or other
acts in relation to the said work which is done before the expiration of the term of
copyright if such distortion, mutilation, modification or other act would be prejudicial to
his honour or reputation. Moral rights are available to the authors even after the
economic rights are assigned130.
When copyright has been infringed131:
Make sure that the copyright belongs to you and that there exists all
documentation for the same.
Following kinds of infringement may occur –

Making infringing copies for sale or hire or selling or letting them for
hire;
Permitting any place for the performance of works in public where
such performance constitutes infringement of copyright;
Distributing infringing copies for the purpose of trade or to such an
extent so as to affect prejudicially the interest of the owner of
copyright ;
Public exhibition of infringing copies by way of trade; and
Importation of infringing copies into India.
Removing RMI from digital content
Decryption, decoding, jail-breaking etc. without prior permission of
the owner
If any person who knowingly infringes or abets the infringement of the copyright
in any work, he commits criminal offence under Section 63 or 65A or 65B of the
Copyright Act.
It is a cognizable offence. Any police officer, not below the rank of a sub
inspector, may, if he is satisfied that an offence in respect of the infringement of
copyright in any work has been, is being, or is likely to be committed, seize
without warrant, all copies of the work and all plates used for the purpose of
making infringing copies of the work, wherever found, and all copies and plates
so seized shall, as soon as practicable be produced before a magistrate. No court
inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first
class shall try any offence under the Copyright Act.
Hence. An author or owner whose copyright has been infringed can file a
complaint with the police for penalizing the infringer.
In case of civil remedy, any person whose rights have been infringed, he is
entitled to remedies by way of injunctions, damages and accounts. The District
Court concerned has the jurisdiction in civil suits regarding copyright
infringement.



130 Supra note 95
131 Supra Note 123

3.9.2 FOR A PROPOSED INFRINGER

f you receive any letter or notice saying that you infringed a copyright, there are certain things
you need to keep in mind.

I ⎟ Review the materials specifically subject to the claim of copyright infringement.
⎟ Determine whether you have used the material in the manner said in the letter or
notice, whether its still protected by copyright and whether the material was in public
domain or not.
⎟ If permission was required to use this material, did you obtain any such permission or
not. Check whether you breached any license requiring limit number of authorized use
to access content.
⎟ If your infringement falls under the umbrella of section 52 of the Copyright Act for FAIR
USE, you can be exempted from the infringement charges. In case of Digital Content
infringement or Circumvention, determine whether you fall under any of the exceptions
under Section 65A.

⎟ Answer three questions i.e. (a) what was the purpose of the use, (b) how much of the
copyrighted work did you use? And (c) what is the impact of your activity on the
potential market where this work is sold.

⎟ Leave no factual information that exists.
⎟ Certain notices may mention solutions for infringement issue by providing for options

like, payment of “after-the-fact” copyright license fee, or by stopping any and all use of
the content. Evaluate your options carefully.
⎟ Where any person claiming to be the owner of copyright in any work, by circulars,
advertisements or otherwise, threatens any other person with any legal proceedings or
liability in respect of an alleged infringement of copyright, any person aggrieved thereby
may institute a declaratory suit that the alleged infringement to which the threats
related was not in fact an infringement of any legal rights of the person making such
threats and may in any such suit –

Obtain an injunction against the continuance of such threats; and
Recover such damages, if any, as he has sustained by reason of such threats.


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