India: Impact Of Digitisation On Reproduction Right: How Fair Are Access Control Measures?

Last Updated: 28 January 2015
Article by Priya Anuragini

Right of reproduction is one of the most important rights of the copyright holder. However the exact notion or interpretation of what would constitute reproduction within the copyright regime is not provided in any major international copyright instrument. Even the Berne convention which was the first major convention to formally recognise the right of reproduction only talks about the exclusive nature of the right rather than defining it.1 Under the 1976 USA Copyright Act, copies and phone records can be considered to form the equivalent of reproduction. Its Indian counterpart Indian copyright Act, 1957 provides reproduction right to almost all categories of copyrightable work, but nowhere defines reproduction and merely stipulates that the work should be conveyed in a form suitable for reproduction.2

Dawn of a New Age and repercussions on reproduction right

The technologies facilitating reproduction of copyrighted content have come a long way since Gutenberg's Printing Press. In fact the printing press was the instrument which not only controlled author's intellectual property but also controlled the passage of work from authors' hand to readers' hand. Thus printing press was mode of reproduction which could be regulated. In case the mode of reproduction could not be as easily controlled as printing press then reproduction right did not altogether exist. For instance the concept of reproduction right was not applied to speeches, singing of songs in private

With the arrival of digitisation which is almost similar to word of mouth communication every act which would have been regarded trivial in offline analogue context suddenly takes on a new context in the light of new technologies. This difference or transformation has been very well illustrated by one of the judges as follows

Consider the crucial distinction in copyright law between reading and writing. To read a copyright law is no violation; only to copy it in writing. The technological basis for this distinction is reversed with a computer text. To read a text stored in electronic memory one displays it on screen i.e. the text has to be written to be read.3

Thus to determine what would constitute reproduction of copyrighted material becomes very important so as to clearly decide whether providing mere access to digitised material would constitute infringement or copying and consequently violation of the reproduction right.

Access Control Measures: Impeding Fair Educational Uses

In view of digitisation having significant potential for knowledge dissemination to those who have hitherto struggled with affordability and accessibility, the ambit of reproduction right in digital age is of far reaching significance and needs to be determined accordingly.

Digitisation involves the reproduction right because changing the format of a work from analogue to digital requires reproduction of the work. For example, a book has to be scanned before it can be digitised. Now if this is also included in the copying then how can potential of digitisation be exploited for enhancing accessibility to educational materials? Though in Kelly v. Arriba Soft Corp.,4 a landmark case with a potentially far-reaching impact for copyright law on the Internet, it was held that a visual search engine's creation and use of thumbnails of copyrighted images constituted fair use and thus search engines' reproduction of images for use as thumbnails is a fair use. Also in Perfect 10 v. Amazon5, the court held that in-linking to the full-size image on another website, which does not require a reproduction of the original images, doesn't infringe the reproduction right thus giving a wide ambit to the reproduction right in case of internet. However when it comes to copying only for the purposes of the display or transient copying (when content is transferred from any hardware to the RAM of the computer) there is not much clarity if it will constitute reproduction with courts emphasising that if transient copying enables further copying then it is reproduction.

The overstretch of reproduction right can be clearly seen in section 1201 of Digital Millennium Copyright Act(DMCA) of USA which criminalizes the act of circumventing access control measures, whether or not there is actual infringement of copyright itself.6 Effectively this means that even reading a copyrighted material is equivalent to infringing it. Now by what stretch of imagination policymakers have given this expansion to reproduction right is beyond comprehension. However what is markedly clear is the impact it may have on the accessibility to copyrighted material for educational purposes. Even if users are entitled to access the article legally this provision may act as an impediment. It may take away fair use defences as American Fair use doctrine does not ipso facto recognize all educational uses as fair and threat of litigation is likely to keep many potential users away. The question that clearly remains is "can Copyright law legitimately prevent users from reading copyrighted materials by taking recourse to access control measures"?

1 As per article 9(1) of the Berne "Authors of literary and artistic works shall have the exclusive right of authorizing the reproduction of these works, in any manner or form".

2 Section 2(iii) of the Indian Copyright Act, 1957 lays down that in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical is adaptation of the work which as per section 14 of the Act is the right of the copyright owners.

3 Matrox electronic systems v. Gaudreau ( 1993) R.J.J.Q 2449

4 Kelly v. Arriba Soft Corp, 336 F.3d 811

5 Perfect 10 v. Amazon ,487,F.3d, 701

6 As per 17 U.S Code Section 1201 "no person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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