Introduction

Comfort is the greatest gift given by technology to mankind in the form of computers, and iPad through which a person sitting in any corner of the world could access any information. Mediums such as Google, and YouTube have added to the convenience of users and made work available to them thereby fostering creativity, the object of copyright law. This digitalization has, however, also attracted many impediments.

In this write-up, I will discuss, firstly, how infringement on a digital platform has created concerns for the creators and how the DMCA provision i.e., Section 512 (c) has failed to provide compensation for the same but still has provided relief for further distribution. Secondly, I will discuss another provision of DMCA i.e., Section 1201 which addresses the creator’s concern and provides sufficient protection to their material from infringement. Thirdly, I will give the perspective from the user’s point of view that due to giving unlimited power to the creator under the provision of Section 1201 of DMCA; how will affect the free use of the internet. Fourthly, I will conclude by saying that the power given to the creator will bring change to the whole regime and will create a balance between the consumers and creators, and will provide encouragement for more creation.

Copyright In The Digital Era

Copyright law is enacted to protect the rights of authors, composers, artists, etc. to promote creativity but it also assures to build freely upon the idea and information. Copyright is not concerned with the originality of the idea. It is only concerned with the expression of such ideas[1]. Moreover, it should not be copied from another’s work. With the internet coming into the picture this problem has become all the more acute. The Napster case, where it was promoting people to upload CDs and insisting people download them from the same portal was a direct cause of infringement as Napster despite having the possibility to monitor the content did not take any steps. Users are not ready to accept the law because they don’t want to waste time or spend money to buy such things because the same is available on the internet.

Concerns Of Authors

Copyright law, presently, is facing challenges because of digitalization. Due to this, the existing problem of infringement is uphill. It is pertinent to note that despite the cost-effectiveness of the commodities of the digital world, the supply of the same is too high to meet the high demands of consumers. Using these instruments cases of infringing copyrighted work are also increasing thereby diminishing the right of a copyright holder. Addressing this issue of infringement, the United States and European Union have made legislation to protect the interest of the author. The United States has passed the Digital Millennium Copyright Act which protects the interest of the copyright holder on the internet. Once the author gets aware that someone is using his work without his consent then the author has the option to report the matter to the internet service provider ISP/ OSP online service provider under section 512(c) to remove the content. In one of the cases where Viacom International sued the YouTube website, for using copyright material (audiovisual clips) on their website without their authorization. YouTube complied with the notice and removed the videos but the compensation was not provided to Viacom because Digital Millennium Copyright Act provides “safe harbor” protections to the online service providers[2]. However, the decision is good for the users but the authors are deprived economically.

Peer to peer is the biggest challenge as it works when two or more computers are connected and share infringed data or other data which is copyrighted. Let’s examine the same through the case laws. In the case of Napster, users were downloading copyright material from other sites and uploaded the material on the server, to allow another user in any other location to retrieve that file[3]. In this case, the music industry was getting deprived of their hard work and money because the server was occupied with new music material which enabled any person/consumer to download the material for free without paying any amount. Due to this, the creators/ industry had to suffer economically.

Similarly, there was one more case known as the Grokster case, which allowed users to transfer files directly to each other and not on any central server. This embodies the concept of peer-to-peer file sharing in the truest sense of the term.[4] Today several other players in the market have changed their business model so that it could not come under the preview of law, like Bit Torrent which itself does not contain or host any copyrighted material but help user to extract the material from other several user computers in bits and parts. That it would be very difficult to track from where it is extracted. This made Limewire, Shareaza, etc. enter the market5. Now the market is controlled by the tools, which help users to extract the data from the other sites or other users. It is very difficult to prosecute every consumer who is sitting across the border who is involved in such activities, as it will take more resources, and compliance and will also affect the public relationship because of cross-border activities. These businesses are very different from sites like YouTube, Facebook, etc. because they know they are acting in bad faith and providing or hosting material that is not legal whereas sites like YouTube, and Facebook work in good faith as it helps every individual to showcase their knowledge, skill, and talent thereby bringing such sites under the exemption of Section 512(c) of DMCA.

However, there are problems concerning these mediums (Google, YouTube, and Facebook) too where the rights of creators are being infringed and no compensation is provided. Let’s analyze through example, suppose one uploads a film or song today on YouTube until and unless the creators do not know that the song or film has been uploaded, ISP will not remove it. When the creator gets to know that there is copyright infringement only then does, he has the power to move the application under section 512 (c) of DMCA. Under Section 512 (c) of DMCA, these sites have been protected from copyright claims and therefore they are not liable to pay compensation to authors whose materials were available on their sites and due to which authors failed to receive compensation. During that period, when the creator was unaware of the fact that their work is viral on the internet, consumers who consumed the work (music videos or pictures) by downloading the work with the help of some tool and distributed it to their peers and future. This shows how the chain will go on, and in that case, it will be impossible to trace all such infringers. Therefore, present legislation is not able to address and solve the issue about this.

Power under Section 1201 of DMCA

Addressing the growth and innovation of technologies, (DMCA 1998) has incorporated the provision which gives power to the author to protect their work on the Digital platform. Under provision 1201, copyright owners are given authority to protect their work through encryption, passwords, or any other trusted system. If the work is protected then the users have to take the prior permission of the author to use the work for his/her use. Under this section, few exemptions are provided to the government, in which situation they promulgate a law to keep a check. However, still, we have to see how it will tackle copyright infringement as this section has no case laws so far. Hopefully, with the help of this section piracy can be controlled and the loss which is suffered by the entertainment and software industry could be handled. But this provision will affect the right of the user to fair use which I have mentioned herein below.

Even though there is an agreement between the nations, there is no legislation in India concerning tackling such issues of copyright. Within seconds of the movie’s release, they are on the internet. There are so many sites that have their foundation in a country where there is no legislation in the field of copyright that could address these issues. However, nations respect DMCA and EU to locate answers to these compelling questions.

In India, the Copyright Act, of 1957 deals with the infringement of copyright but does not impose any liability on the internet service providers. Section 51[5] deals with copyright infringement. The issue of ISP is dealt with in Section 79[6] of the Information and Technological Act 2000 which also provides the cover or safe harbor to Internet service providers.

Users’ Contention & Exceptions To Copyright Infringement

The fair use doctrine emphasizes the fact that the copyrighted work can be used by the user without the consent of the original author. Under Section 107 of the Copyright Act 1975[7], Hon’ble Court(s) have the authority to look into how the work has been used, and whether it is used fairly or unfairly. In cases like Holdrege case[8], where it was held that the use of an author’s work as a source for creating something new is fair use. However, the enactment of provision 1201 of DMCA which I have discussed above, has given the authority to authors to protect their material on the internet through encryption, password, or trusted system[9]. If the internet service provider or copyright holder started practicing this option then it would be impossible to access data on the internet or the world wide web because it can restrict the public domain data which was traditionally free and for that, now the consumers will have to take permission from the copyright holder to use and that would not be free of cost. It’s a very good move to protect data before publication but after publication, if it has been locked then there will be no free flow of knowledge, and consumers have to pay for using the data[10].

Pay per use will create unbalance between the copyright holder and the consumers because now consumers have to bear the costs for research, scholarship, and literal or political purposes. Therefore, section 1201 should have to create some limitations for which the providers have been kept under review of some committees because the provision has given unlimited power to the copyright holder which will affect the doctrine of fair use. And more the whole idea of copyright law is to promote creativity and not to create space only for the creators because one without the other will not be able to survive. If we disintegrate all the files on the internet then it would violate the purpose for which the internet was created. Ideally, the internet and the data in the public domain were free for everyone to promote knowledge and scientific research. It will create a monopoly in the market for the creators, therefore to curb the copyright infringement they should regulate by creating a regulatory body for specific industries that are getting the most affected like music, book publisher, movie industry, etc.

Conclusion

I will support the notion that provision 1201 of DMCA13 would not create any kind of hindrance between the two and will not restrict the fair use of the user. It will encourage and promote the consumer to enhance their intellectual skills and this power of TPMs will enable the copyright holders to create their free online libraries. Also, it will inculcate the habit of working hard to provide good services to their consumers without any fear of infringement.

Now another question which one might ask as to why to pay? To answer this question in simple terms is because nobody wants to do work for free. Everyone wants something in return: to get benefit from the hard work and time spent on the task. It is imperative to respect creativity.

Another question that one might ask what if the work which we are paying for doesn’t qualify to fulfill our needs? In such a case, there should be the provision of a trial period where one can access work that could be highly protected by the author. The same model is operated by the OTT platforms and the same can be implemented across the industry with certain supervision.

If we start with this model then it will give more creators to create online stores. There will be no monopoly on the internet and so the rate will automatically be cheaper. Also, the legislative body and policymaker may consider passing an amendment concerning the time limit of the copyright which differs from country to country, and decrease the limit so that the work would fall under the public domain and everybody will be able to receive benefit out of it.

Another solution to the problem of copyright infringement is to start taking precautions for the future generation by making them aware of copyright infringement activities and why it is not good and how they can contribute by not using sites that have illegal options to download. Already internet service providers have started the project for infringers by sending them a warning and explaining to them about copyright law and how it is affecting the creators of their act. Therefore, it’s a smart move from the industry itself to tackle the said challenge[11].

For any discussion and clarification, the author of this article can be reached at dachambersconnect@outlook.

[1] Goldstein, Paul. “Copyright in the New Information Age.” Cath. UL Rev. 40 (1990): 829

[2] Viacom International v. YouTube, (S.D.N.Y. June 23,210)

[3]A&M Records, Inc v Napster, Inc., 239 F.3d 1004, 1011-12 (9th Cir.2001)

[4] MGM Studios Inc v Grokster Ltd., 545 U.S. 913, 939 (2005)

[5] Section 51 Copyright Act, 1957 – provides that copyright is deemed to be infringed when any person, without a license granted by the owner of the copyright or the Registrar of copyright: Permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.

[6] Section 79 of Information and Technological Act 2000, exempts the network service provider, it provides that any person providing any services as a network service provider is not be made liable for any third party information or data made available by him if he proves that the offense or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offense or contravention.

[7] Section 107 Copyright Act 1975 lists four categories that the court considers to decide whether it is fair use or not. The first principle is the purpose and character of the use, including whether such use is of a commercial matter or is a nonprofit educational purpose.

The second principle is the nature of the copyrighted work.

The third principle is the amount and substantiality of the portion used about the copyrighted work as a whole Forth principle is, the effect of the use upon the potential market for a value of copyright.

[8] Holdrege v Knight Publishing Corp 214 F. Supp. 921 (S.D. Cal. 1963)

[9] U.S. 17 1201 DMCA

[10] Espana, Mauricio. “Fallacy That Fair Use and Information Should Be Provided for Free: An Analysis of the Responses to the DMCA’s Section 1201, The.” Fordham Urb. LJ 31 (2003): 135.

[11] Disclaimer – This is solely for informational purposes and this information should not be considered as legal, professional advice, service, advertisement, or solicitation in any manner whatsoever. Deepanshu Arora further assumes no liability for the interpretation and/or use of the information contained in this post, nor does it offer a warranty of any kind, either expressed or implied. The contents of the information are provided “as is”, with no guarantees of genuineness, completeness, accuracy, or timeliness, and without representations, warranties, or other contractual terms of any kind, express or implied. Please consult the professional before acting on the information.

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