Navigating the Digital Frontier: Copyright Infringement Challenges in Cyberspace

Navigating the Digital Frontier: Copyright Infringement Challenges in Cyberspace

Author:-ARRTHI M B.Sc., LL.B (Hons,).,SCHOOL OF EXCELLENCE IN LAW, TAMILNADU Dr.AMBEDKAR LAW UNIVERSITY, CHENNAI.

1.Introduction 

The way we produce, distribute, and consume material has been changed by the internet. The worldwide movement of ideas and information has been made easier by this digital frontier, but it has also given rise to difficult problems with copyright infringement. This essay seeks to clarify the complex web of problems of copyright infringement in internet.

1.2 Provisions

1.2.1 Section  3 Meaning of publication.— For the purposes of this Act, “publication” means making a work available to the public by issue of copies or by communicating the work to the public

1.2.2 Section 14  Meaning of copyright "Copyright" refers to the exclusive right, subject to this Act's requirements, to do or authorize the performance of any of the following actions with respect to a work or any significant portion of it, including

1. in the case of a literary, dramatic, or musical work that is not a computer program,—

                   (i) to reproduce the work in any material form, including the storage of it in any medium by electronic means;

                 (ii) to issue copies of the work to the public if none have already been distributed;

                 (iii) to perform the work in public or communicate it to the public;

                 (iv) to produce a cinematograph film or sound recording about the work;

                 (v) to translate or adapt the work;

                 (vi) to adapt the work;

                  (vii) to perform any of the acts listed under clauses (i) through (vi) in relation to a translation or adaptation of the work;

2. In the case of a computer program, 

                 (i) to carry out any of the acts listed in clause (a); and 

                 (ii) to sell, give on commercial rental, or offer for sale or on commercial rental any copy of the program, with the caveat that such commercial rental does not apply to programs where the program itself is not the primary object of the rental.

3. in the case of a work of art,— 

                  (i) to reproduce the work in any material form, including

                            (A) the storage of it in any medium by electronic or other means; or 

                            (B) the depiction in three dimensions of a two-dimensional work; or

                            (C) the depiction in two dimensions of a three-dimensional work;

              (ii) make the work available to the public; 

              (iii) distribute copies of the work to the public that are not already in circulation; 

              (iv) incorporate the work into any cinematograph film;

              (v) adapt the work in any way; 

             (vi) carry out any of the actions outlined in connection with the work in subclauses (i) to (iv);

4. if it's a cinematograph film, 

             (i) to replicate the movie, including

                          (A) a picture captured in a photograph that is a part of it; 

                          (B) via electronic or other methods, storing it on any medium; 

            (ii) to offer any copy of the movie for sale or rental on a commercial basis, or to sell it;

            (iii) to make the movie known to the general audience;

5. in the case of sound recording,

             (i) creating a different sound recording that contains it [includes archiving it on any medium using electronic or other methods]; 

            (ii) to sell, give away for commercial rental, or make any duplicate of the sound recording available for sale or for such rental;

           (iii) Disseminate the audio recording to the general public

1.3 INFRINGEMENT   

                    

1.3.1 CONTRIBUTORY INFRINGEMENT

Where a person or entity indirectly facilitates or contributes to copyright infringement by another party. In contributory infringement cases, the person or entity may not be directly engaged in the act of copyright infringement, such as reproducing or distributing copyrighted material, but they play a significant role in enabling or encouraging someone else to commit copyright infringement.

Essentials

1. Direct Copyright Infringement: There must be direct copyright infringement by a third party. This means that someone else must be actively engaged in infringing the copyright holder's rights, such as by copying, distributing, or publicly performing copyrighted material without authorization.

2. Knowledge: The contributory infringer must have knowledge or awareness of the third party's copyright infringement. This knowledge can be either actual or constructive, meaning that they either knew about the infringement or should have known about it under the circumstances.

3. Material Contribution: The contributory infringer must materially contribute to the infringement. This means that their actions or assistance must have a significant impact on enabling or facilitating the infringement. Mere knowledge of the infringement without material contribution is generally not sufficient for contributory liability.

4. Intent or Inducement: In some cases, it may be necessary to show that the contributory infringer intended to induce or encourage the copyright infringement. This can involve actively promoting or facilitating the infringing activities.

1.3.2 VICARIOUS INFRINGEMENT

Vicarious infringement, also known as vicarious liability, is a legal concept in copyright law that holds certain individuals or entities responsible for copyright infringement committed by others, even if they did not directly engage in the infringing activities themselves. This legal doctrine typically applies in situations where the party being held vicariously liable has a supervisory or controlling relationship with the actual infringer. There are several key elements to understand regarding vicarious infringement:

Essentials

1. Direct Copyright Infringement: To establish vicarious infringement, there must be direct copyright infringement committed by a third party. This means that someone else, often an employee, contractor, or agent, directly engages in activities that violate the copyright holder's exclusive rights, such as copying, distributing, or performing copyrighted material without authorization.

2. Relationship of Control or Supervision: The party held vicariously liable must have a significant level of control, authority, or supervisory power over the individual or entity that committed the direct infringement. This control relationship can exist in various contexts, such as employer-employee, principal-agent, or parent-subsidiary.

3. Financial Benefit: The party being held vicariously liable must derive a direct financial benefit from the infringing activities. This financial benefit may not necessarily come directly from the infringing actions themselves but can result from the overall activities or operations of the entity.

4. Ability to Supervise or Prevent Infringement: The party being held vicariously liable must have the ability to supervise or control the infringing activities and the means to prevent or stop them. This means they must have the capacity and resources to take action to prevent copyright infringement.

5. Knowledge or Awareness: While knowledge of the specific infringing act is not always required for vicarious infringement, it can strengthen the case against the party held liable. If the party knew about the infringement and failed to take action, it may increase their liability.

1.4 LANDMARK CASE 

 "A&M Records, Inc. v. Napster, Inc." 

Background:

Napster was a pioneering peer-to-peer (P2P) file-sharing platform created by Shawn Fanning and Sean Parker in 1999. The service allowed users to share and download digital music files, including copyrighted songs, for free. It gained immense popularity, reaching tens of millions of users, but it also raised significant legal concerns within the music industry.

Plaintiffs:

The case was brought by several major record labels, including A&M Records, Inc., along with other plaintiffs like Capitol Records, Sony Music, and Warner Bros. Records. They alleged copyright infringement and sought legal remedies against Napster.

The Lawsuit:   

The plaintiffs argued that Napster was actively facilitating copyright infringement by providing a platform that allowed users to share copyrighted music without authorization. They claimed that Napster was liable for contributory copyright infringement and vicarious copyright infringement.

Contributory Copyright Infringement:

Contributory copyright infringement occurs when a party knowingly contributes to or facilitates direct copyright infringement by others. In this case, the plaintiffs argued that Napster knowingly facilitated the unauthorized sharing of copyrighted music by its users. Napster's involvement included providing the software, maintaining the platform, and actively promoting its use for sharing music files.

Vicarious Copyright Infringement:

Vicarious copyright infringement occurs when a party has the right and ability to control the infringing activities of another and derives a direct financial benefit from the infringement. The plaintiffs argued that Napster had the ability to control its platform and users' activities, and it benefited financially from increased user engagement.

The Court's Decision:

In 2000, the U.S. District Court for the Northern District of California issued a preliminary injunction against Napster, ordering the company to remove copyrighted material from its platform. The court found that Napster's users were likely engaging in direct copyright infringement, and Napster itself contributed to this infringement by providing the means to facilitate it.

In 2001, the Ninth Circuit Court of Appeals upheld the preliminary injunction, affirming that Napster could be held liable for contributory copyright infringement. The court found that Napster had knowledge of widespread copyright infringement on its platform and failed to take meaningful action to prevent it.

Impact:

The legal battle severely impacted Napster, and the company eventually filed for bankruptcy. Although the original Napster service was shut down, the case marked a significant moment in the ongoing debate over the responsibilities of online service providers for preventing copyright infringement. It also accelerated the development of legitimate digital music distribution services and set the stage for the music industry's transition to digital formats.

1.5 FAIR USE DOCTRINE 

The Fair Use Doctrine, codified in Section 107 of the U.S. Copyright Act (17 U.S. Code § 107), is a crucial provision that allows limited use of copyrighted material without the need for permission from or payment to the copyright owner. Fair use is intended to strike a balance between the exclusive rights of copyright holders and the public's interests, such as freedom of expression, education, and commentary.

Section 107 of the U.S. Copyright Act outlines the four factors that courts consider when determining whether a particular use of copyrighted material qualifies as fair use. These factors are not absolute rules but are weighed collectively in a case-by-case analysis:

1. Purpose and Character of the Use:

   - This factor examines how the copyrighted material is being used. Courts assess whether the use is for purposes such as criticism, commentary, news reporting, teaching, scholarship, research, or transformative purposes.

   - Transformativeness is a key consideration. If the use transforms the original work into something new and different, it is more likely to be considered fair use.

2. Nature of the Copyrighted Work:

   - This factor considers the nature of the copyrighted material being used. It distinguishes between creative and factual works.

   - The use of factual works is more likely to be considered fair use, as copyright protection for factual information is typically weaker than for creative expression.

3. Amount and Substantiality of the Portion Used:

   - This factor evaluates how much of the copyrighted work is being used in relation to the whole work. Using a small, less significant portion of the work may weigh in favor of fair use.

   - However, there is no specific threshold that defines what constitutes a "small" or "insignificant" portion, as this determination depends on the specific circumstances.

4. Effect on the Market for the Original Work:

- This factor assesses whether the use of the copyrighted material could potentially harm the market for the original work. If the use competes with or substitutes for the original work, it may weigh against fair use.

1.6 ISP (INTERNET SERVICE PROVIDER)

In copyright law doesn’t deal with online service provider in express terms. However provisions relating to ISPs are specially legislated in the INFORMATION TECHNOLOGY ACT, 2000 Where ISP referred to as NETWORK SERVICE PROVIDER meaning an intermediary. Further it defines intermediary means a person on behalf of another person receives, stores, transmits that message or provide any service with respect to that message   

1.6.1 ISP LIABILITY 

• Horizontal

• Non-horizontal approach

In horizontal -direct and fixed

                        -irrespective of content and extent of illegality of content 

In non-horizontal - liability is determined by the provisions and jurisdiction of Law

                                 -Direct, contributory and vicarious infringement

 Section 63 in the Indian Copyright Act, 1957, that is widely recognized as a key provision pertaining to internet service providers (ISPs) or copyright enforcement.

However, the Copyright Act, 1957, does contain several provisions and sections that can be relevant to ISPs and copyright in India. These include:

1. Section 51 (a) (ii): This section deals with copyright infringement and includes actions that constitute copyright infringement. ISPs may need to be aware of this section if they are involved in activities that could potentially infringe copyright, such as hosting or distributing copyrighted content without authorization.

2. Section 52 (1) (c): This section lists exceptions to copyright infringement, including fair dealing provisions. It may be relevant when considering the use of copyrighted materials in certain contexts, such as for educational or research purposes.

3. Section 79 (1):  This section provides safe harbor protections for ISPs in certain cases. It states that ISPs are not liable for third-party content that they transmit, store, or provide access to if they follow certain conditions, such as not initiating the transmission and promptly removing content upon notification of infringement.

4. Section 65 (b):  This section deals with the punishment for making or selling devices for circumventing technological protection measures, such as digital rights management (DRM) systems. ISPs that are involved in such activities may be affected.

5. Section 66 (a) (1): This section deals with the punishment for knowingly using an infringing copy of a computer program. ISPs that use unauthorized software copies may be subject to this section.

Exempt from liability

Section 79  ( IT Act,2000 ) legal protections for intermediaries

Section 79 of the Information Technology (IT) Act, 2000, in India is an important provision that provides legal protections for intermediaries, including internet service providers (ISPs), in certain circumstances. This section is often referred to as the "safe harbor" provision and is designed to strike a balance between enabling digital services and protecting the interests of copyright holders and other stakeholders. Here is an explanation of Section 79 of the IT Act, 2000:

1. Safe Harbor for Intermediaries:  Section 79 of the IT Act grants legal immunity to intermediaries for certain actions performed by their users. Intermediaries can include ISPs, social media platforms, e-commerce websites, search engines, and other online service providers.

2. Conditions for Safe Harbor: 

 To qualify for the safe harbor protections, intermediaries must meet certain conditions:

         a. Lack of Knowledge: Intermediaries should not have actual knowledge of the unlawful content or activity taking place on their platform or network. However, they are required to act expeditiously to remove or disable access to such content once they receive notice or knowledge of its illegality.

             b. No Initiation of Transmission:  Intermediaries should not initiate the transmission of any content on their platform. They are considered passive conduits for user-generated content.

            c. No Modification of Content:  Intermediaries should not modify the content transmitted by users. Any modification beyond technical processes for optimizing the transmission is considered a departure from safe harbor protection.

3. Compliance with Guidelines: Intermediaries must also comply with any guidelines and rules prescribed by the Indian government regarding the due diligence to be observed by intermediaries. These guidelines may specify the manner and procedures for safe harbor compliance.

4. Safe Harbor and Copyright Infringement:  While Section 79 provides a safe harbor for intermediaries, it doesn't absolve them of responsibilities under copyright law. In cases of copyright infringement, copyright holders can still take legal action against the actual infringers. However, intermediaries are protected from direct liability for copyright infringement by their users as long as they meet the conditions outlined in the section.

5. Takedown of Unlawful Content: Intermediaries are required to act promptly to remove or disable access to content once they receive a court order or a notice from a government agency or an affected party. Failure to do so can result in the loss of safe harbor protection.

6. Protection Against Misuse:  Section 79 helps protect intermediaries from being held liable for unlawful content or actions taken by users over their platforms, as long as they act in good faith to comply with the law.

1.7 CONCLUSION

Copyright infringement in cyberspace is a complex issue with no easy solutions. As technology continues to evolve, copyright laws and enforcement mechanisms must adapt to strike a balance between protecting intellectual property and promoting innovation and creativity in the digital age. Copyright protection in the digital sphere is a universal problem. Protecting unfair and unlawful use of intellectual property, such as video, film, music, and software, is a difficult issue that several nations, including India, are battling. In this context, technological and legal safeguards have emerged, including instruments like the WIPO Copyright Treaty, the TRIPS Agreement, Anti-counterfeiting Trade Agreement (ACTA), and encryption, among others. In this study, the methods for policing and preventing the usage of copyrighted content on digital platforms were clearly outlined or examined. Today, copyright infringement in the digital sphere is a big problem. The song's refashioning is one of numerous violations that have occurred as a result of the copyright act's lack of adequate regulatory or protective mechanisms. In India, there is no particular system for managing digital rights. DRM refers to the use of technology that limits the use of digital content that has been granted a copyright as well as protecting the rights of the copyright holder and preventing illicit distribution. India should thus install DRM technology to stop these copyright violations in the digital sphere.  

REFERENCE:

1. Samuelson, Pamela. "Copyright's fair use doctrine and digital data." Law and Contemporary Problems 58.1 (1995): 221-253

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3. Striking a Balance between Liability of Internet Service Providers and Protection of Copyright over the Internet: A Need of the Hour by Priyambada Mishra and Angsuman Dutta 

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5. The Right Space Between Copyright and Cyberspace: Discussing the Jurisdiction of Copyright in Cyberspace in Indian Context by Sanket Singh Sengar

6. ONLINE COPYRIGHT INFRINGEMENT LIABILITY OF INTERNET SERVICE PROVIDERS By Raman Mittal Journal of the Indian Law Institute

Vol. 46, No. 2, Intellectual Property Rights Special Issue (April-June 2004), pp. 288-321 (34 pages)

7. Copyright Infringement and Peer-to-Peer Technology By William Mitchell Law Review, Vol. 28, No. 3, p. 1001, 2002 

8. Issue and challenges in protecting copyright in cyberspace a comparative analysis by shelke Atmaram

9. COPYRIGHT INFRINGEMENT AND PEER-TO-PEER TECHNOLOGY Niels Schaumann, Vice Dean of Faculty