India: Digital Rights Management & Its Interaction With Net Neutrality

Last Updated: 25 May 2017
Article by Khurana And Khurana

Article by: Akriti Dhagga, Intern, at Khurana and Khurana Advocates and IP Attorneys

The online platform offers ample opportunity for infringement of copyrights and it is but natural for copyright holders to react apprehensively and clamor for absolute regulation of the digital copyright market. However, the virtual world is a whole different ball game where standard rules fail to achieve the desired objective. Therefore, a mechanism was developed to counter unauthorized use and give more control to the copyright holder over the categories accessible and the type of usage and modification allowed, called Digital Rights Management (DRM). It was proposed through the WIPO Internet treaties of WIPO Cooperation Treaty (WCT) and WIPO Performers and Phonograms Treaty (WPPT) to provide a flexible and globally enforceable mechanism of governing digital copyrights.

Functioning

DRM works on the format of a pre-existing contractual relationship where the copyright holder controls the usage of the work even after it has been accessed by the user. It controls the number of copies that can be made, specifies the modifications allowed and how much of the work can be accessed, after its sale to the user.1 DRMs are a business management model based on a contractual relationship, and serve the interests of the creator or the facilitator of digital content. They can range from mere content copy regulation to full-fledged management schemes regulating each action in the transaction, all in an encrypted fashion. The material to be accessed can be decrypted through special knowledge which may be acquired by performing certain authorized actions. Some mechanisms supervise and regulate the number of copies that can be made.2 The machine readable information coded in Rights Expression Languages (REL) is used to control permissions which restrict access and use for certain periods and for certain users as well as influence the quality of the work accessible.3 DRMs are widely used in e-books, video games, computer software, mobiles etc., and work quite well. However, this mechanism is not suitable for all digital platforms as will be delineated in the following pages.

DRM Provisions in Indian Copyright Act

The Copyright Amendment Act, 2012 incorporated certain DRM provisions in consonance with the WIPO Cooperation Treaty (WCT) and WIPO Performers and Phonograms Treaty (WPPT). India had consistently resisted becoming a contracting party to these TRIPS treaties, however, the incorporation of digital regulatory provisions indicates an alteration of position. Section 65A and 65B comprise the DRM provisions, the former dealing with protection against circumvention of technological measures and the latter with protection of rights management information. Clause 2(a) of section 65A also specifies that nothing in the provision shall prevent the doing of anything referred to therein for the purpose that is not expressly prohibited by the Copyright Act, 2012. Apart from this, the provision also exempts circumvention of technological measures for the purpose of certain activities like encryption research, lawful investigation, security testing of a computer system or a computer network with the authorization of the owner, protection of privacy and measures necessary in the interest of national security.4 The Indian copyright law permits circumvention with the help of third parties provided certain procedural conditions are satisfied. However, section 65A provides for a criminal penalty of imprisonment for 2 years and a fine, for violation of this provision, which is a rather worrisome development.5

DRM and low Net Neutrality: the Unholy Alliance

An adverse impact on fair use is the least of the complications that DRM causes. In retrospect, analyzing the impact of its operation in the US and the EU is proof enough of its draconian and anti-progressive nature. Although the provisions in the Indian Copyright Act are not draconian in nature, DRM has the potential to turn the clock back on any society in which it operates. DRM makes generally legal things illegal, as a consequence of which innocent downloaders – who are free-loaders at best – are prosecuted under laws meant for pirates while the real threat continue to operate. Although India has not adopted such overly stringent enforcement mechanisms, the inclusion of DRM provisions in the Indian Copyright Act has not been founded on any rational basis.6 Therefore, even a minimalist approach as adopted by India is not in our best interests. This discussion is intimately connected to the recent debates on net neutrality which is another regulatory initiative attempted at price differentiation among different classes of consumers using the internet for various different purposes. This would create inequality among consumers and only serve to benefit telecommunication companies who are lobbying for this initiative. The Free Basics initiative by Facebook which was aggressively advertised was actually against the principle of net neutrality as it sought to provide "certain basic internet services for free". The problem with such differentiation is not only that there is no clarity as to what these basic services mean, whether they will be uniform across all service providers and is it appropriate for telecom companies to determine what will be available to whom, but there is also a danger of arbitrary decision-making which will ultimately adversely affect the users. This coupled with DRM would make fine potion for a user rights disaster, making a mockery out the whole system of IPR and competition law.

Footnotes

1 Tarun Krishnakumar and Kaustav Saha, 'India's New Copyright Law: The Good, The Bad and the DRM' 10 JIPR (December 2012).

2 Arul George Scaria, 'Does India Need Digital Rights Management Provisions or Better Digital Business Management Strategies?' JIPR (September 2012) vol 17 pg 467.

3 Sacha Wunsch-Vincent, 'The economics of copyright and the internet: Moving to an empirical assessment relevant in the digital age' Economic Research Working Paper No.9, WIPO Economics and Statistics Series, (July 2013).

4Indian Copyright Act, S 65A (2)(b) to 65A (2)(g)(1957).

5 Arul George Scaria, 'Does India Need Digital Rights Management Provisions or Better Digital Business Management Strategies?'17 JIPR 464, 463-477 (September 2012).

6 Charles Bailey, 'Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia' Information Technology and Libraries 116-139 (September 2006).

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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