Study on the Concept and Challenges of Copyright Laws in Cyberspace

As Mr. Justice Peterson said in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601:

The primary capacity of copyright law is to ensure the fruits of an individual's skill, work or work from being replicated by others .Essentially, copyright laws exist to anticipate others exploiting an individual's endeavors2. The courts have demonstrated next to no compassion toward plagiarists, and have habitually indicated that copyright law out to be translated in such a way to ensure the enthusiasm of the copyright owner 3. Despite the fact that copyright initially ensured just the composed word it has in this way been stretched out to cover imaginative and visual cooperates with rights in regard of the exhibition of works 4. The European Community attempted, in the late 1980s to build up a strategy concerning licensed innovation assurance for computer projects to which part countries ought to orchestrate their laws. The EC Directive, distributed in 1991, Article 2 (1)

1 David Bainbridge, Introduction to Computer Law ,Fourth Edition 2000, Pitman Publishing , Edinburgh Gate , England .p 15 2 Supra note 2 p.16 3 David Bainbridge , Intellectual Property (3rd Ed.1996 ) p 19 4 Rhys Bollen ,Copyright in the Digital Domain http://www.murdoch.edu.au/elaw/issues/v8n2/bolle n82_text.html#t20

underwrites the view that computer projects ought to be secured under part states, copyright laws as scholarly works and given in any event 50 years of assurance against unauthorized copying5. The UK Copyright Act 1956 made no notice of computers or computer programs.6 After the approach of computer items in mass in the market during 80's, the computer business was overwhelmed by the computer software piracy 70 problems8. An assortment of copyright resolutions

5 Article 2 (1), the term of protection shall be fifty years from the time that the computer program is first lawfully made available to the public. http://europa.eu.int/smartapi/cgi/sga_doc?smartapi! celexapi!prod!CELEXnumdoc&lg=EN&numdoc= 32001L0029&model=guichett 6 In spite of this Act many writers considered they were protected as literary work. see Laaddie , H, Prescott . P .and Victoria, M. The Modern Law of Copyright (1st Ed. 1980) p.93 7 Software piracy is on the rise around the globe growing from 37 percent in 2000 to 40 percent in 2001, according to the Business Software Alliance‘s (BSA) seventh annual benchmark survey on global software piracy. The number of optical disks (CDs, DVDs etc) and cassettes seized by EU customs officers rose from 9 million items in 2000 to nearly 40 million items in 2001. (Illegal copies of optical discs and cassettes account for 42% of all items seized see at http://www.bsa.org/usa/press/newsreleases/2002- 06-10.1129.phtml 8 A committee, known as the Whit ford Committee was set up to examine copyright law in general, the report of which was published in 1977. The Committee found that with regards to computer software, works produced by or with the aid of a programmed computer, the current state of copyright law was unsatisfactory. Recommendations where thus made to improve the law accordingly. In 1981 the government acknowledged the Whit ford Report by virtue of its consultative Green Paper on Copyright- Reform of the Law Relating, Designs and Performers‘ Protection. http://sgeag001web.ag.gov.au/www/rwpattach.nsf/

classification of scholarly work. In USA , The Copy right Act 1976 doesn't explicitly list computer programs as work of initiation, its legislative history propose that Congress believed projects to be copyrightable as abstract works. Just in 1980, the Act was corrected by including a meaning of computer program9.

Copyright assurance gives the creator of work a specific 'heap of rights 10‘ remembering the elite right to repeat the work for duplicates, to get ready subordinate works dependent on the copyright work and to perform or show the work freely 11. Every one of these rights become possibly the most important factor in a system domain It ought to be remembered that the standards of copyright that administer these rights are the equivalent regardless of the work being computerized in nature or something else.

The issue of open execution doesn't become possibly the most important factor when one is discussing computer software. The correct that gets influenced is that of show. Regularly, software that is downloaded from the Internet12 gets displayed publicly, in this way abusing the copyright holder's right to display the work. Display of the work is additionally done by making duplicates which are then retailed or loaned out, this likewise falls under the right to display, which the holder of the copyright has. Under American law the term 'display' isn't characterized. One needs to take a gander at the meaning of the terms 'public performance‘13 and 'communication to the public. Along these lines, under the rule, on the off chance that one displays the computer software or the activity of the computer software over the Internet, it would add up to display

view as attachment Personal/C8DC5A4A82C553CE CA256CCB0020D914/$file/International%20oblig ations.pdf 9 The US legislation took more rapid action with regards to computer software protection when in 1980 it enacted the Computer Software Copyright Act. In Australia, following the case of Apple Computer Inc. v. Computer Edge Pty Ltd [1984] FSR 246, the Australian Parliament enacted the Australian Copyright Amendment Act 1984 also see http://www.murdoch.edu.au/elaw/issues/v8n2/bolle n82_text.html#t20 10 This means that the holder of the copyrights has certain rights that are vested in him and only him unless he chooses to assign such rights. 11 There are numerous other rights also ,which are specific to dramatic ,literary works etc. , which the author is not going into .The above mentioned rights are in no way exhaustive ,but in the opinion of the author they are the rights that one can associate with computer software 12 Usually games and other multimedia works are displayed publicly 13 Under the American Copyright Act ,as per S 101 , which defines the term public performance

This is one of the most significant rights with regards to the classification of works that are secured by copyright legislation. The issue that must be tended to here is whether the Internet client's copying of the creator's work comprises an infringement of the creator's copyright? On account of Internet, the trial of 'considerable similitude' test isn't an issue on the grounds that the software, whenever copied, will be indistinguishable from the software of the creator. The Court of Appeals for the Federal Circuit in America in Atari Games Corporation v. Nintendo of America Inc.14, clearly expressed that "in any event, for works that warrant restricted copyright protection, verbatim copying is an infringement.‖15. Along these lines, in the light of this judgment, demonstrating that copyright over software has been infringed is simpler. Area 102(b) of the American

14 975F.2d, 832 ,The Court of Appeals for the Federal Circuit in America http://cyber.law.harvard.edu/openlaw/DVD/cases/a tarivnintendo.html 15 This statement is essential in the case of copying of computer software from the Internet ,for it signifies two things ,the first being that the plantiff in an internet copyright infringement case will have no difficulty in proving that the two are ‗substantially similar‘ and second that this test may be reduced to a virtual nullity in cases of verbatim software copying

Copyright law concedes the holder of the copyright the selective right to appropriate duplicates of the work to the public by deal or by the exchange of ownership 19. As clarified over, the Internet by its very nature of being advanced, encourages the creation of limitless number of copies with no loss of quality. The issue is that, under statutory law, spreading a work on an advanced system may not just comprise a public performance or display by methods for transmission, yet may likewise be viewed as a conveyance of the copies, for each one of the individuals who get to the system get a copy of the work. The other issue that one appearances when managing the dispersion of computer software is that the individual who disseminates the copy doesn't carefully 'move the ownership' of the copy, as comprehended when one arrangements with a physical copy. Along these lines, an individual can pass on boundless number of copies, which are computerized in nature and still hold the original copy. Consequently, the qualification between public

16 982 F.2d 693, Computer Associates International, Inc. v. Altai, Inc., (2nd Cir. 1992). United States Court of Appeals, Second Circuit http://www.bitlaw.com/source/cases/copyright/altai .html 17 Midway Mfg. Co. v. Artic International, Inc., 704 F.2d 1009 (7th Cir. 1983) 18 Lewis Galoob Toys Inc v.Nintendo of America ,The case dealt with a similar situation of software that enhanced the defendant software ,COURT OF APPEALS FOR THE NINTH CIRCUIT964 F.2d 965; 1992 U.S. App. LEXIS 11266; 22 U.S.P.Q.2D http://cyber.law.harvard.edu/openlaw/DVD/cases/ Galoob_v_Nintendo.html 19 S106 (3) of the American Copyright Act ,1988 which include the right to issue copies of the work to the public not being copies already in circulation‘ .

The right of reproduction introduces certain principal issues over the Internet. This emerges out of the essential idea of Internet transmission. Reproduction happens at each phase of transmission. Like in most copyright laws, in the Indian law, the distribution right additionally gets depleted with the main deal.21 Starting at now, an understudy can unreservedly sell a recycled reading material or a library can circle among its individuals' books it acquired. In the Internet, distribution gets snared with reproduction since no copy can be circulated without reproduction. Temporary copying (known as caching) is a basic part of the transmission procedure through Internet without which messages can't go through the networks and arrive at their goals. In any event, when a client just needs to peruse through, temporary copying happens on the client's computer. Inclusion of the temporary reproductions was a fervently discussed issue in the World Intellectual Property Organization (WIPO) Diplomatic Conference of December 1996 and still stayed uncertain. When a reproduction happens over the span of approved utilization of the work and whose design is exclusively to make the work noticeable or where the reproduction is of a transient or accidental nature, would it be a good idea for it to be limited? In the Indian law, reproduction must be in a material structure yet incorporates 'putting away of it in any medium by electronic methods.' Case laws are yet to explain whether reproductions occurring in Internet communications go under the domain of the right of reproduction given by the law and until that is done, feelings will differ on temporary reproduction and perpetual reproduction and on the legitimateness of the temporary reproduction. It will enthusiasm to see whether the courts will present the idea of economic significance of a reproduction to bring it inside the domain of the right of reproduction conceded by the Copyright Act.

20 It becomes difficult to distinguish between the licences that the holder of the copyright may have created i.e. separate lincences of distribution and display. So, at times it may become necessary to find a dividing line between the two. 21 Besser Howard, Recent changes to copyright: Attacks against public interest, Peace Journal, 11 (1) 1999, http://www.gseis.ucla.edu/~howard/

customary ideas. An a valid example is that of distributing. With the coming of the mechanical unrest and the period of large scale manufacturing, distributers of books and music had made their entrance. They have become such a nearness, that scholars couldn't think about a world without them. The Internet is a medium, which as unmistakable from books evacuated the mediator between an author and his/her peruser. The writer can put his/her work on the Internet and the peruser can get to it straightforwardly. On the off chance that print machine had brought forth distributing industry, the Internet, by engaging each essayist to be his/her distributer has sounded an admonition ringer, if not the demise toll, of that industry. This brings up the issue in the case of making a work accessible on Internet is 'publication' or not. As indicated by the Indian Act, 'publication' for motivation behind copyright signifies, 'making a work accessible to the public by issue of copies or by conveying the work to the public.' This definition, by ideals of its non-limitation, can be interpreted as covering electronic distributing and, in this manner, 'publication' on the Internet. It might, notwithstanding, take a couple of years before electronic distributing in India truly makes a major imprint. One of the essential copyright issues in Internet is deciding the outskirt between private use and public use. Like all copyright laws of the world, the Indian Copyright Act likewise makes a differentiation between reproduction for public use and private use. Reproduction for public use should be possible just with the right holder's authorization, while the law permits a reasonable managing with the end goal of private use, research, analysis or survey. This qualification is disintegrated with the capacity of a person to transmit over the Internet any copyrightable work to hordes of clients all the while from the privacy of his/her home and clients having the option to download all the while an ideal copy of the material transmitted, in their homes. Blurring ceaselessly of the meager line that partitions the public and private regions, many feel, requires another arrangement of standards in copyright. Regardless of whether communication over the Internet is 'communication to the public' is as yet a disrupted issue. The Indian Copyright Act has a thorough meaning of 'communication to the public.' The Act says, ' 'communication to the public' signifies making any work accessible for being seen or heard or generally delighted in by the public legitimately or using any and all means of display or dispersion other than giving copies of such work paying little mind to whether any individual from the public really observes, hears or generally appreciates the work so made accessible.' This definition is viewed as wide enough to envelop communication over the Internet inside its overlap. In the event that the courts receive

There are zones where contrasts in social point of view may have an orientation on the propriety of the material being transmitted over the Internet.22 Numerous abstract, artistic and cinematographic articulations, which are acknowledged in the western culture, may not be adequate in increasingly customary social orders like the Indian culture. On account of books, music, artistic pieces and cinematographic films, a national government can practice certain powers over them; even on account of communicates and broadcasts this is conceivable all things considered. On account of Internet communication, how are we going? It is preposterous on the Net to have policing at the national limits. Controlling and filtering information that courses through the Internet has numerous commonsense troubles. Controlling and filtering information that moves through the Internet has numerous pragmatic challenges. Under Section 69 the IT Act, it is conceivable to catch material that is vulgar in nature (obscene or prurient) and this at present incorporates the ability to square locales. Likewise, such move can be made against explicit sites, which is the reason one won't generally discover any pornography being hosted in India. Still the Internet is excessively enormous and undefined for any regulation. At the point when one closes an encroaching site, a hundred such locales may crop up in better places. The measure of information on the Internet is enormous and found not in one nation however everywhere throughout the globe. It isn't plausible for any administration to blue pencil it. Blue penciling is conceivable when wellsprings of information are restricted. There is a significant contrast between the mass electronic media like television and radio, and the Internet.

Maybe the most critical issue from the edge of copyright enforcement is that of liability. For one, there is the issue of liability for acts that occur over the span of transmission of a lawful (as particular from an infringed) copy of a work. As of now referenced, the issue depends a great deal on the translation that the legal executive takes of different rights given by the law. In the event that the legal executive takes the view that reproduction, and so forth., that happens in travel is infringement of a copyright, at that point addresses will emerge as to fixation of liability. Who is to be considered capable?

22 Cyberspace challenges the traditional notion of jurisdiction, for instance while homosexuality is deemed illegal by Section 377 of the Indian Penal Code, it is not illegal in most western countries.

(ISP)? The appropriate response won't be anything but difficult to discover. The other issue is of communication over the Internet of a plainly infringed copy of a work. The disputable issue in this issue is whether an ISP be held obligated for the copyright infringement made by a supporter despite the fact that he doesn't know about the endorser's action. Section 79 of the Information Technology Act, 2000, states that if the endorser demonstrates that the offense or contradiction was submitted without his insight or that he had practiced all due industriousness to avert the commission of such offense or repudiation then he won't be held subject under the said Act. While depicting copyright offense, the Indian Copyright Act makes the stipulation that the infringement or abetment of the infringement must be made 'purposely' by an individual.23 It is conceivable that by excellence of the articulation 'intentionally' an ISP, who might not have any mindfulness about the copyright infringement by the supporter, might be acquitted from liability and getaway discipline.24 This, be that as it may, brings up another issue. Regardless of whether the ISP isn't culpable under the Indian law, he may bring about liability under the national law of another nation. Since Internet is really worldwide and is no spectator of national boundaries, how are we going to manage this? The networks are spread everywhere throughout the world and a message or information goes through any number of nations before it arrives at its last goal. The ISP might not have any liability in the nation of root and in the nation of goal however may have liability in some nation in travel. ISPs and Software Developers are conceivably obligated for copyright infringement dependent on the auxiliary liability25 speculations of contributory or vicarious infringement. A contributory infringer is 'one who, with information on the encroaching activity, incites, causes or really adds to the encroaching behavior of another.26 All together for the provider to be held at risk, some immediate infringement probably happened and the provider must meet the necessity of either contributory copyright infringement or vicarious copyright infringement.27

23 Garware Plastic & Polyester v Telelink, AIR 1989 Bom 331, In this case, the Court held that the showing of video films over a cable network directly affected the earnings of the author and violated his intellectual property rights, and stated that assisting in infringement would amount to infringement of copyright. 24 Section 79 of the Information Technology Act, 2000 25 Secondary liability ‗arises when one party is held legally responsible for the actions of another party.‘ and it can be vicarious liability and contributory liability. 26 Gershwin Publ‘g Corp v Columbia Artists Management Inc, 443 F 2d 1159, 1162 (2d Cir 1971. 27 Sony Corp of America v Universal City Studios Inc (US 1984) 104 S Ct 774, 464 U S 417; A & M Records Inc v Napster, 239 F

would be adequate to address the difficulty or whether we ought to go for a sui generis arrangement of IPR protection. In fact, there is an all-inclusive pattern to think as far as sui generis types of protection to address the new innovative difficulties. Accordingly, there have been planner laws for intellectual property in mechanical structures, plant assortments and in incorporated circuits. Databases and legends are in line for getting sui generis protection. While the copyright laws have, throughout the decades, indicated a lot of adaptability in pleasing new types of creation, there still is a lot of inflexibility in them. The thought articulation division is integral to the copyright teaching and, consequently, copyright doesn't secure the thoughts, techniques and practical characteristics. A sui generis structure will normally have significantly greater adaptability in its extension, level and term of protection. In any case, at that point it surmises an eagerness to try, an ability to give the law a chance to advance through a procedure of experimentation.

Copyright isn't intended to allow to its holders select control of their works; rather, it is a quite certain heap of rights intended to cultivate innovativeness for the public intrigue. There is no right response to the subject of fate of copyright since eventual fate of Internet is still so questionable. Clearly, the decisions we make currently will influence the course it will pursue. A progressively satisfactory option is translate reasonable use extensively to block infringement by unharmful, noncommercial uses. Software organizations give specialized help. Free intellectual works flourish on the Internet, with express signs of the conditions under which they can be copied or utilized. New types of remuneration may oust copyright. Maybe at last, the fate of copyright on the Internet may depend more on prevalent discernments than it will on prohibitive regulations. Laws are probably intended to reflect public assessment, not control it. Individuals keep decides that they accept are sensible. Individuals' essential idea of what is reasonable and fair may best decide the eventual fate of copyright in cyberspace.

Section 13 and 63 of the Indian Copyright Act, 1957. Section 2(x) of the Indian Copyright Act, 1957.

3d 1004, 1020 (9th Cir2001); In re Aimster Copyright Litigation, 2003 Copr L Dec P 28,630, 67 USP Q 2d 1233.

Marks and Turnbull (2000). The Intersection of Technology, Law and Commercial Licenses‘ [2000] EIPR 198 Charn Wing Wan,The challenge of the criminalization of online piracy in Hong KongOxford Journals Law Jnl of Intellectual Property Law & Practice (2008)Volume 3, Number 10, pp. 666-672 Garnett, HK, Davies, G Harbottle, G, Copinger Skone James on Copyright, Vol 1 London Sweet Maxwell, 15th ed, 2004, in Journal of Intellectual Property Law & Practice

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