‘Intellectual Property’ can be broadly classified into two branches viz ‘Industrial Property' and ‘Copyright’. The former protects inventions and the latter literary and artistic works. Copyright law protects only the form of expression of ideas - not the ideas itself. The creativity protected by copyright law is creativity in the choice and arrangement of words, musical notes, colors and shapes. The legal protection under the copyright is to prevent unauthorized use of expression of ideas. The rationale of longer duration awarded to copyright is that once the idea is disclosed to the public, the creator will not be able to prevent third parties from using his ideas.
Technological revolution can be seen as either a boon or a bane in connection with the copyright protection. One of the prime areas where the technology has clearly made its mark is in the field of entertainment. In India, there has been a tremendous boost in the film industry and music industry with the advent of new technology. On the other hand, technology itself has contributed to the growth of piracy and counterfeiting. It is true that the Copyright Act, 1957, along with the amendments in 1999 have engrafted provisions to check and counter piracy and infringements. But there are certain situations that seem to sneak out of the clutches of copyright law in India. The best example being the famous US case - A & M Records, Inc v. Napster Inc.
The case revolves around the use of MP3 technology by Napster Inc. allowing Internet users to exchange with each other’s music files through Napster’s server. The software is built upon the concept of peer-to-peer architecture to facilitate sharing, swapping and finding audio music files over the internet. The Napster service enables the users to create their own private libraries of sound recordings. These libraries are then made available to other users for instantaneous distribution and copying. The peculiarity is that Napster’s service function is limited to the finding and swapping of information through the index created, but does not keep any music files on its own servers. When a user of the Napster application types in the key word of a song, Napster instantly creates a linked list of other users who have this song in their hardware and by another clicking the file it is automatically copied without passing thorough the Napster server.
The question here is whether the Copyright Act, 1957 is capable of tackling these situations.
It would amount to infringement as per the Act only when the activity involved in is
- reproducing the copyrighted work or storing them
- selling and hiring of copyright
- issuing copies of work to public
- performing the work in public or communicating it to them or;
- making any translations or adaptations of the work
At the outset itself, it is pertinent to note that the act of Napster does not amount to infringement as per the Copyright Act, 1957 as its function does not lead to the above. The next question is whether such a person can be booked under the contributory liability principle.
The liability of IPR infringement, generally rest on three theories: direct, vicarious and contributory infringement. The first two theories are based on strict liability principles where as contributory infringement arises when a person participates in an act of direct infringement and has knowledge of infringing activity. In short the principle of mens rea, is the foundation for the third theory.
In India, Information Technology Act, 2000 comes into play while dealing in cyber crimes. But, Section 79 of the Act attaches liability to network service providers only in certain cases. It provides that no service providers shall be liable under the Act, rules or regulations for any third party information or data made available to him provided he proves that the offence or contravention was committed without his knowledge and that he had exercised all due diligence to prevent the commission of such offence. But the explanatory part specifies ‘network service provider’ to mean an ‘intermediary’. Section 2 (w) of the IT Act, 2000 defines ‘intermediary’ with respect to any particular electronic message means any person who, on behalf of another person, receives, stores or transmits that message or provides any service with respect to that message. Interestingly Napster-like cases neither receives, store or transmit any file. It never enters the service provider’s server, hence section 79 would have limited applicability in such cases.
Now, even if the statutes have limited applicability, the moot question is whether the Indian Judiciary is equipped with to tackle such situation. It is pertinent to note at this juncture that ‘service marks’ were given protection by the Judiciary even before the same gathered legislative backing. Indian Judiciary still continues to determine domain name disputes by extending the trademark jurisprudence. Hence, it can be positively concluded that Indian Judiciary is well equipped to tackle the situation by attaching contributory copyright liability by imputing the knowledge on the service provider. Undoubtedly, the situation violates two conceptual rights enshrined in the Copyright Act viz reproduction rights and distribution rights.
What remains to be seen is whether the changes mooted in the Copyright Act would be sufficient enough to tackle the situation as the Ministry of Human Resources Development has released a draft and currently is seeking public comment.
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.