Sunday, 16 December 2012

India's new copyright law: the good, the bad and the DRM

Authors: Tarun Krishnakumar and Kaustav Saha (National Law School of India University, Bangalore, India)

The Copyright (Amendment) Act 2012 [No 27 of 2012], passed on 22 May 2012 and brought into force on 7 June 2012

Journal of Intellectual Property Law & Practice (2012) doi: 10.1093/jiplp/jps178, first published online: December 14, 2012

The recent amendment to the Indian Copyright Act 1957 introduces criminal and monetary sanctions for the circumvention of digital rights management (DRM).

Legal context

Since the original Copyright (Amendment) Bill was formulated in 2010, an overhaul of the Indian copyright regime had been imminent for some time. The Copyright (Amendment) Act 2012, passed by the Lok Sabha (lower house of Parliament) on 22 May 2012, was oriented towards achieving that end. Some aspects of the amendment, such as the provisions relating to facilitation of special formats for the disabled and the recognition of rights of contributors to films (such as composers and lyricists), were lauded as necessary and progressive reform while others were passed all but unnoticed. The provisions that relate to the protection of digital rights management (DRM) techniques fall into this latter class.

As is commonly understood, DRM relates to the techniques and methods used to limit access or control over protected intellectual property after the initial sale by the right holder. Common examples include encryption or ‘scrambling’ of copyright music CDs and DVDs to prevent copying (or ‘ripping’), the locking of smart phones to particular service providers and the imposition of restrictive licensing agreements. By their inherently restrictive nature, DRM techniques have important implications for a consumer's rights, for example on his rights to fair use, choice and full enjoyment of the works purchased by him. DRM, by its impact on fair use, can also have a chilling effect on free speech as comment and discussion are stifled by the threat of infringement litigation.

In the Indian context, the decision to introduce DRM-protection measures has been justified by the government which reasons that DRM-protection was necessary to bring India's copyright law in line with WIPO's Copyright (WCT) and Performances and Phonograms (WPPT) treaties. The fact that India had not ratified, much less signed, either of these treaties seems to have gone unnoticed. The World Trade Organization's Agreement on Trade Related Intellectual Property Rights (TRIPS) itself makes no mention of an obligation on signatories—of which India is one—to protect DRM measures. A combination of influences such as sustained if not well-disguised media house lobbying and international pressure due to India's consistent presence on the United States Trade Representative's Special 301 Report (which lists countries that do not provide ‘adequate and effective’ intellectual property protection) seem to have had their intended effect.

Statutory amendments

The DRM-linked statutory changes introduced by the amendment feature in three parts of the amended Act.

First, s 2, the definitions clause, has been amended to define rights management information (RMI) (s 2(xa)) as the title or any other information identifying the work in question (2(xa)(a)), the name or address of the author, performer or rights owner (s 2(xa)(b) and (c)), the terms and conditions regarding the use of rights (s 2(xa)(d)) and would include any number or code representing the above (s 2(xa)(e)).

Secondly, the new s 65A introduces TPM into Indian copyright law. The first clause of the new section criminalizes the circumvention of an effective TPM with the intention of infringing any of the rights conferred by the Act. Offenders shall be punishable with imprisonment for up to two years and fines (section 65A(1)). Clause (2) carves out a number of exceptions to this rule. The general exception under sub-clause (a) exempts anything that is not expressly prohibited by the Act. A proviso to this sub-clause conditions the operation of the general exception to the maintenance of complete records and particulars, of the person performing the circumvention, by anyone facilitating such circumvention.

Sub-clauses (b) to (g) list specific exceptions to criminal liability for circumvention including those relating to encryption research (s 65A(2)(b)), lawful investigations (s 65A(2)(c)), authorized cyber-security testing (s 65A(2)(d) and (e)), user identification or surveillance (section 65A(2)(f)) and in interests of national security (s 65A(2)(g)).

Thirdly, the new s 65B provides for the protection of RMI. The section is two-pronged with the (i) knowing unauthorized removal of any RMI (s 65B(i)) and the (ii) knowing distribution, broadcasting or communication to the public of any work or performance with the knowledge that the RMI has been removed or altered without authority (s 65B(ii)) being made offences punishable with imprisonment for up to two years and fine. The proviso to this section also enables the copyright owner whose interests have been affected by the removal of RMI to seek civil remedies under Chapter XII of the Act.

By introducing these changes, the Act has given recognition to DRM protection in India, both for TPMs and RMI. The implications of these amendments have important consequences for both copyright holders and consumers as discussed in the following segment.

Analysis

While the provisions governing DRM are intended to operate as a single scheme, the implications of TPM and RMI are to an extent separate. Therefore, it is best to examine them separately.

Technological protection measures

The first clause of s 65A restricts the range of actions that may be considered circumvention to those applied for the protection of rights conferred by the Copyright Act. This provision cannot thus be extended to protect measures that purely restrict or control access to material outside of the protection conferred under the Act. Instead, it takes aim at the prevention of unauthorized copying, broadcasting, communication and the like. Section 65A envisages intention to infringe as a crucial element in the imposition of criminal sanctions. Under this provision, mere circumvention is insufficient without the intention to infringe the rights conferred by the Copyright Act. While this requirement is likely to increase the burden when prosecuting alleged offenders, it has the potential to shield ‘innocent’ or unintended acts of circumvention from criminal liability.

In contrast with the Digital Millennium Copyright Act (DMCA), the Indian Act does not criminalize the facilitation of circumvention either directly or through the production of tools which facilitate circumvention of TPMs. This omission—intentional or otherwise—would ensure that technological innovation is not adversely affected as has been the case in the United States where technologies for other purposes which only incidentally allow circumvention have been outlawed.

Furthermore, under the proviso to s 65A(2)(a), no penalty is specified for a facilitator who does not maintain records of a circumvention. Is this the equivalent to the case of a person who actually circumvents the TPM? The Act provides no clear answer.

Rights management information

Section 65B deals with protection for RMI, which covers any information including the name of the performer, copyright information or an ISBN number which is used to identify or authenticate copies of a work or performance. The first clause of the section deals with the more direct offence of removing or altering RMI embedded in a work while the second clause of the section provides that anyone who, in an unauthorized manner, distributes, broadcasts, communicates to the public or otherwise markets copies of the work with the knowledge that RMI has been removed or altered is equally culpable as the person who removed it in the first place. The wording of this section is quite narrow and provides no exceptions such as those present in regard to TPMs. Problems that this approach could be faced with include instances of companies in converting copyright material into formats designed for (say) consumers with disabilities—a concern voiced by Yahoo India in its submissions to the Parliamentary Standing Committee designated to look into the Bill's provisions.

Certain forms of RMI also collect information about users from their devices without their explicit consent: s 65B, when read with s 2(xa), prohibits these forms of RMI. Such a definition ensures that consumer privacy is not compromised by the use of RMI. These issues aside, the question of whether criminal sanctions are warranted for an act potentially as ‘docile’ as removing or altering RMI—which primarily result in tangible, monetary losses—is one that is likely to remain uncomfortably unanswered.

Practical significance

The problem with the Indian intellectual property regime in general, and the copyright regime in particular, has never been the lack of statutory instruments or sanctions: it has, however, been the lack of an efficient enforcement environment. An undertrained, over-worked and ill-equipped criminal justice system is likely to hamper efforts to enforce DRM protection on a large scale. Ultimately, a homicide is clearly going to be prioritized over a case under ss 65A or 65B for an already under-staffed police force.

It is not therefore known whether the introduction of DRM will actually work towards stemming levels of piracy in India—the ostensible policy objective.

While it is beyond the scope of this article to consider whether combating piracy as a policy objective is desirable, what is certain is that new concerns regarding the rights of consumers in relation to copyrighted works will arise. In practice, one can expect to find media houses and record companies employing more resources and effort in developing new means and methods of DRM, given that the latter are now are protected by the force of law. For the same reason, one can also expect companies increasingly to deploy such means and methods in attempts to protect their copyright material.

In the digital context, increased protection is likely to take a toll on computer processing speeds while courts are likely to see floods of new criminal litigation initiated by media houses as a testament to their newly acquired powers. Consequently, courts will be called on to clarify many of the inherent ambiguities present in the new sections, most of which deal with cutting-edge technological issues which the judiciary will have to adapt to quickly. Given the on-going debates over whether criminal liability is, in the first place, to be enforced in the name of DRM protection, the thin line between common consumer and common criminal is likely to grow even thinner in time to come.

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