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Journal of Intellectual Property Rights

Vol 8, July 2003, pp 276-301

Digital Technologies and Emerging Copyright Scenario


Zakir Thomas

706 Asia House, Kasturba Gandhi Marg, New Delhi 110 001

(Received 11 May 2003)

Technological progress, which ushered in new modes of exploitation of copyright works


brought in challenges to the copyright regime which had to be periodically modified to ensure
adequate return to the authors and access to the public of these works. Most significant of the
challenges hitherto has been from digital technologies. In order to update the copyright system
the international community drew up two treaties, the WIPO Copyright Treaty (WCT) and the
WIPO Performances and Phonograms Treaty (WPPT). In addition to enhancing the rights of the
authors the treaties provided legal protection to the technological measures used by the authors
in digital transmission. Accession to the Treaties has been rather slow and implementation of
technological protection measures has been a hotly debated issue. The US was the first major
country to implement the Treaty provisions through its Digital Millennium Copyright Act
(DMCA) and the protection of technological measures, particularly anti- circumvention meas-
ures has been a matter of intense debate ever since. The paper looks at some of the conse-
quences of the DMCA, the impact on fair use and on the market place in general. The article
also explores the concerns of the developing countries in securing access to information and the
suggestions of the Commission on Intellectual Property Rights. Noting the importance of copy-
right as a public policy tool, the author pleads for calibration of the copyright balance to suit In-
dias national interests. The author also exhorts the academic community to take active interests
in copyright policy matters.

Copyright system mutated to its current example, photography was the result of
state through continuous interaction with interaction of light on a chemical medium
technological developments. Originally or for that matter cinematograph films
developed as a legal regime in the context involved multiple right holders. The re-
of print media it slowly expanded its fold production right gives us typical example
to cover other forms of creative expres- of the challenges that technological de-
sions like engravings, paintings, draw- velopments posed to the legal system.
ings, sculptural and architectural works. The framers of Berne Convention, 1886,
Later photography and cinematograph considered reproduction right so funda-
films were brought under its protective mental to copyright system that it was not
umbrella. Adapting some of them would considered necessary to spell out this
not have been easy as the copyright sys- right in the Convention1. The progress in
tem had to grapple with new concepts; for technology necessitated spelling out of
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 277

this right by the time of Stockholm Con- technologies of reproduction that existed
vention, 1967. The duplicating machines before the advent of digitisation, in the
and tape recordings had brought in a analogue era, such controls were possible.
situation where individual copy may be a Books were delivered either in hardback
fair use but free availability of such ma- or paperback. Sound recording came on a
chines resulted in large number of such vinyl medium or magnetic tape. Motion
copies thereby potentially affecting the pictures were delivered on film. Broad-
economic exploitation of works. cast was through analogue signals within
Technological developments in its in- limited geographical regions simultane-
teraction with cultural products facilitated ously. Copies made out of such analogue
new forms of creative expressions. products were of inferior quality, which
Whenever technology provided a new deteriorated with further copies. Advent
method of use of cultural goods in the of digital technology changed this land-
society, copyright system brought in rules scape. Digital technologies facilitate con-
and regulations to enable its effective dis- version of any data or information into
tribution in the market place and ensured binary form, which could then be easily
adequate returns to the creator. The Berne stored or replicated. Each digital copy
Convention was periodically updated to came close to the original and each such
incorporate new works and to fine-tune copy could act as seeds for further copies.
the system of protection. It was revised The copyright system, which tradition-
with almost a regular periodicity of once ally dealt with tangible goods, had now to
in every twenty years. In 1896 it dealt come to terms with de-materialized
with mechanical reproduction, in 1908 works in digital form. Digitisation makes
cinematography, in 1928 radio broadcast- near perfect reproduction of works easy
ing, in 1948 new issues in radio broad- and affordable. It also enables adaptation
casting, cinematography and mechanical of works with relative ease. Computers
reproduction and in 1968 television. upon which digitisation thrived required
Since the 1968 Stockholm Convention by virtue of its architecture creation of
and the following Paris Convention temporary, transient or ephemeral copes
(1971) many technological developments in the process of communicating to the
took place. Most significant was the ad- user. Copyright law, which granted au-
vent of digital technologies, which posed thors rights over each reproduction had to
peculiar challenges. deal with this new situation. Emergence
Copyright law grants right to authors of the Internet communication compli-
over certain uses of works. These rights cated this scenario. Once digitised and
are negative in nature whereby the author placed on a network like Internet the au-
could prevent others from doing certain thor loses control over the work. In the
acts with reference to the work. In order analogue era, distribution involved physi-
to exercise these rights, ideally the author cal transfer of copies and ownership over
should have adequate control over the them. Right of reproduction, the core
uses to which the work is put to. With copyright right remained under firm con-
278 J INTELLEC PROP RIGHTS, JULY 2003

trol of the author. In digital transmission, Traditional copyright law arranged the
distribution involved reproduction at rights granted to authors a set of inde-
many stages though transient or ephem- pendent rights separately exercisable,
eral at times, the author having no control each on its own footing. Transmission of
over the issue of copies. The physical works over the Internet resulted in merg-
controls possible in the analogue era were ing of these rights. Each action of view-
no longer available in the digital era. ing or listening to digital content involve
making of temporary or ephemeral copies
Moreover, Internet revolutionized involving reproduction right and public
communication process. Compressibility performance right. As copies are neces-
of digitised works made transmission of sarily made in digital transmission, it also
files containing huge data (like audio- involved distribution right. Thus commu-
visual works) easier and faster. Thus, an nication of an audio or audio-visual
individual with home equipment could works involved reproduction, distribution
with a few keystrokes deliver perfect cop- and public performance simultaneously.
ies of digitized works to scores of other The digital technologies scrambled the
individuals virtually anywhere in the beautifully arranged, dogmatically duly
world2. This broke the isolation of the classified rights central to the approach
individual user from the rest of the world hitherto followed by the copyright sys-
bringing in issues like definition of pri- tem3.
vate use and the extent of it, thus blurring If technology took away some control
the public-private use dichotomy central by one hand it provided some additional
to the fair use doctrine in copyright law. means of control through the other. Digi-
The traditional rights of public perform- tal technologies facilitated putting in
ance and broadcasting covered transmis- place technological protection measures
sion of performance or broadcast simul- that could prevent unauthorized use. A
taneously to a broad group of public. In range of methods are available that re-
Internet transmission, the communication stricts access to works. Password protec-
to public or public performance need not tion is one of the common types. Then
be simultaneous with the performance or there are software firewalls that restrict
the communication. A user can access a unauthorized users from accessing con-
work stored in a server at a place and tent. Encryption is a process of encoding
time chosen by him and a multitude of the content in an unreadable form so that
works can be stored in a server, so that only authorized users who hold the key to
users can access them according to their decode the information can access it.
convenience and enjoy at the time of their Thus a range of options, in fact are pro-
choice. This was an essentially different vided by digital technologies. In addition
form of transmission of works as com- to such technological protection devices,
pared to public performance rights, which the technologies enabled right holders
used to be enjoyed simultaneously in real embed rights management information
time. systems on digital works, which contain
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 279

information that identifies the work, the to address the digital issues, the WIPO
author of the work, the owner of any right Copyright Treaty5 (WCT) and WIPO Per-
in the work, or information about the formances and Phonograms Treaty7
terms and conditions of use of the work. (WPPT)6. Together known as Internet
It was perceived by some that answer to treaties, he Treaties updated the Berne
the machine was machine4 itself. How- Convention by incorporating the existing
ever, these technological measures could TRIPS provisions into its fold and
be circumvented by the use of technolo- granted additional rights to authors in the
gies meant for circumventing these access context of Internet. Protection of com-
control measures. Hence, right holders puter programs7 and original databases8
argued that legal protections should be were incorporated. Rental rights were
provided against circumvention of tech- granted to computer programs, cinemato-
nological measures used by authors to graphic works and sound recordings9. A
protect their rights. Such a step would new right referred to as the right of com-
enable them to enforce their rights in the munication to the public10 was incorpo-
digital world. rated and right of distribution11 was spe-
Even before the Internet had made the cifically spelt out. It also provided for
difficult digital issues complex the recog- legal remedies against circumvention of
nition of the importance of intellectual technological measures12 used by authors
property rights in the Uruguay round of to protect their works. Legal protection
GATT negotiations had led to the conclu- was also granted to rights management
sion of the agreement on Trade- Related information systems13 used by authors
Aspects of Intellectual Property Rights while transmitting works in digital envi-
(TRIPS) which, inter alia, dealt with ronment. The Treaties also provide for
some of the copyright issues, including limitations and exceptions to the rights in
digital issues which were not a part of the Article 1014 of WCT. An agreed state-
Berne Convention like protection of ment concerning this article clarify that
computer programs, original databases not only the limitations and exceptions in
and so on. The Berne Convention had to the national laws considered acceptable
brace itself up to these developments. under Berne Convention may be carried
In order to update Berne Convention forward but also that new exceptions and
provisions to the digital era, the World limitations appropriate for the digital en-
Intellectual Property Organization vironment maybe devised to suit the digi-
(WIPO) initiated discussions on the chal- tal environment. Thus national copyright
lenges of digital technologies to copyright systems are given the freedom to modify
system form the early 90s of the last cen- and carry forward these limitations and
tury onwards. The discussions finally led exceptions to the digital environment.
to the WIPO Diplomatic Conference on
Certain Copyright and Related Rights Protection of Technological Measures
questions in December 1996. This Dip- One of the key provisions relating to
lomatic Conference drew up two treaties enforcement of rights in the digital me-
280 J INTELLEC PROP RIGHTS, JULY 2003

dium is the provision relating to protec- devices with multiple uses such as com-
tion of technological measures used by puters and introduce legal uncertainty,
authors to protect their rights in the digi- thereby freezing design and development
tal environment, which is the subject of of a broad range of products, and conse-
this paper. It turns out that this new addi- quently curtailing consumer welfare16.
tion to the copyrightable measures hap- Eventually the proposal was amended and
pens to be the most debated one. the treaties include only a broad general
Article 11 of the WCT, which deals obligation to protect effective technolo-
with obligations concerning technological gies against the act of circumvention. The
measures, is reproduced below: focus has thereby shifted to the act of cir-
Contracting parties shall provide ade- cumvention rather than the preparatory
quate legal protection and effective legal activities that lead to circumvention.
remedies against the circumvention of Though the treaties were concluded in
effective technological measures that are 1996 it entered into force only in 2002 as
used by the authors in connection with the required number of thirty countries
the exercise of their rights under this joined only by then17. India has not yet
Treaty or the Berne Convention and that joined the treaties, as it is required to
restrict acts, in respect of their works, amend its Act to give effect to the treaty
which are not authorized by authors con- provisions18. As of March 2003 about 41
cerned or permitted by law. countries19 have acceded to WCT and
The WPPT uses almost identical lan- WPPT.
guage in its article 18, which deals with The WIPO actively promotes these
obligations concerning technological treaties as it believes the implementation
measures. Thus the treaties obligate of the Internet Treaties assists in promot-
member states to prevent circumvention ing the development of e-commerce, both
of technological measures used to protect domestically and internationally, and en-
the copyright works. These obligations courages direct foreign investment, by
serve as technological adjuncts15 to the providing greater assurance to businesses
exclusive rights granted by the copyright that their property can be safely dissemi-
law. They provide legal protection that nated20. It devotes substantial resources
the international copyright community to governments that are in the process of
deemed critical to the safe and efficient adhering to the treaties by providing legal
exploitation of works on the digital net- advice arranging meetings and seminars
works. and providing speakers for other meetings
The original draft proposal placed for arranged by WIPO21. These treaties are
discussion regarding article 11 had an part of WIPOs digital agenda22.
obligation to make unlawful the importa-
tion, manufacture and distribution of pro- ImplementationUS Leads the Way
tection defeating devices. There was se- One of the first countries to legislate
vere criticism to this proposal as it may on the treaty provisions was the United
bring in within its purview many popular States through its Digital Millennium
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 281

Copyright Act23 (DMCA) that came into legitimate under the copyright law. This
force in 1998. The European Union (EU) enactment further prohibits the manufac-
has issued a Copyright Directive24 spell- ture or import or distribution of devices
ing out how the treaties should be imple- primarily produced for circumventing a
mented by the member states. Though the technological measure if such devices
initial deadline was set for the end of have limited commercial purpose or use
2002, many EU countries have not yet other than to circumvent. The devices and
implemented them probably because of technologies that enable circumvention
the complexity of the issues involved. are hence banned.
It would be appropriate to examine the The second limb of the DMCA deals
current state of play of the DMCA to de- with the technological measures used by
velop an understanding of the issues in- authors to protect their copyrights
volved in enforcement of digital copy- [See1201 (b) of DMCA]. It prohibits
right. A study of DMCA and its impact is manufacture, distribution or import of
particularly relevant because US is the devices that are primarily designed for the
leader of the digital revolution and its purpose of circumvention of technologi-
court system is probably one of the fastest cal measures that effectively protects the
and so judicial pronouncements are avail- right of a copyright holder. There is no
able even on emerging areas. The most specific prohibition against circumven-
discussed provision of the DMCA is the tion in this case, admittedly because
protection of technological measures. copyright law itself permits circumven-
DMCA divides technological measures tion in some instances like fair use excep-
into two categories: measures that prevent tions.
unauthorized access to a copyright work As to the act of circumvention DMCA
and measures that prevent unauthorized prohibits only the circumventing of tech-
copying or use or performance of a copy- nological measures that control access.
righted work as discussed below. Circumvention is not prohibited in the
The first limb of DMCA prohibits cir- second instance but devices that enable
cumvention of technological measures circumvention are banned. DMCA bans
controlling access. Sec 1201(a) of DMCA only those devices: (i) which are primar-
states, No person shall circumvent a ily designed or produced to circumvent,
technological measure that effectively (ii) which have only limited commer-
controls access to a work protected under cially significant purpose other than to
this title. The access control measures circumvent, or (iii) which are marketed
used in digital transmission are thus pro- for use in circumventing. DMCA contains
tected. So, for example, this provision provisions for exemptions from liability
makes it unlawful to defeat the encryption for certain limited classes of activities,
system used on a DVD containing a including security testing, reverse engi-
movie. This ban on acts of circumvention neering of software, encryption research,
applies even where the purpose for de- and law enforcement. A violation of any
crypting the movie would otherwise be of the prohibition is subject to significant
282 J INTELLEC PROP RIGHTS, JULY 2003

civil and, in some circumstances, criminal ister hailed this agreement as establishing
penalties. high standards in intellectual property28.
Some copyright scholars25 argue that Clearly, the US sees intellectual property
DMCA went far beyond the requirements issues as vital to its economic interests
of the WIPO Copyright Treaty and that and would like other legal systems to fol-
by banning all acts of circumvention and low the legislation it has put in place.
all technologies and tools that can be used
for circumvention. However we need to Some Consequences
note that this legislation26 was framed
Though the DMCA was enacted to
after extensive consultations with indus-
prevent piracy of copyright works in the
try and public and hardly any case law
online environment, critics argue that it in
precedents were available when the legis-
effect prevents a number of otherwise
lation was put to law. The copyright in-
legitimate activities. Some incidents nar-
dustry strongly favours this legislation.
rated below describe what some call as
The International Intellectual Property
the chilling consequences of an overarch-
Alliance advocates DMCA as the best
ing legislation in the field of copyright29.
solution to protect the rights of creators in
digital environment. Same is the advice In September 2000, a multi-industry
of Business Software Alliance (BSA), an group in US known as the Secure Digital
international association of software ma- Music Initiative (SDMI) issued a public
jors. challenge encouraging skilled technolo-
The BSA has welcomed a recent trade gists to try to defeat certain watermarking
agreement between US and Singapore technologies it had developed intended to
echoing the anti- circumvention provi- protect digital music. A Princeton Uni-
sions of the DMCA27. This trade agree- versity professor Edward Felten and a
ment makes it unlawful circumvention team of researchers took up the challenge
without authority of any effective techno- and succeeded in removing the water-
logical measure or distribution of a hard- marks. When the team tried to present
ware device or software utility that per- their results at an academic conference,
forms a circumvention function. The however, SDMI representatives threat-
complex trade agreement, which deals ened the researchers with liability under
with many other areas, also deems it a the DMCA. The threat letter was also
criminal offence to wilfully receive or delivered to the researchers employers,
further distribute an encrypted program- as well as the conference organizers. The
carrying satellite signal that has been de- researchers had to withdraw their paper
coded without the authorization of the from the conference. The threat was ulti-
lawful distributor of the signal. The US mately withdrawn and a portion of the
president said that the agreement would research published at a subsequent con-
help generate well paying jobs and oppor- ference, but only after the researchers
tunities for people in Singapore and the filed a lawsuit in a federal court.
United States. The Singapore Prime Min- Following the legal threat against Pro-
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 283

fessor Feltens research team a number of lowed those who have legitimately pur-
prominent computer security experts have chased e-books to make fair uses of their
curtailed their legitimate research activi- e-books, which would otherwise not be
ties out of fear of potential DMCA liabil- possible with the current Adobe e-book
ity30. For example, prominent Dutch cryp- format. For instance, the program allows
tographer and security systems analyst people to engage in the following activi-
Niels Ferguson discovered a major secu- ties, all of which are fair uses:
rity flaw in an Intel video encryption sys- read it on a laptop or computer other
tem known as High Bandwidth Digital than the one on which the e-book
Content Protection (HDCP). He declined was first downloaded;
to publish his results on his website relat- continue to access a work in the fu-
ing to flaws in HDCP, on the grounds that ture, if the particular technological
he travels frequently to the US and is device for which the e-book was
fearful of prosecution and/or liability purchased becomes obsolete;
under the U.S. DMCA law. print an e-book on paper;
More shocking is the experience of a read an e-book on an alternative
Russian programmer who lived and operating system such as Linux
worked in Moscow. When he came to (Adobes format works only on
attend a conference in the Unites States, Macs and Windows PCs);
the US authorities arrested him. What have a computer read an e-book out
was Skylarovs alleged crime? Skylarov loud using text-to-speech software,
had worked on a software program which is particularly important for
known as the Advanced e-Book Proces- visually-impaired individuals
sor, which allowed owners of Adobe From Adobes perspective this pro-
electronic books (e-books) to convert gram helped to remove the restrictions
them from Adobes e-book format into placed on e- book thus enabling others to
Adobe Portable Document Format copy them. Thus, this software could en-
(pdf) files, thereby removing restric- able a pirate to copy an electronic book
tions embedded into the files by e-Book otherwise readable only with Adobes
publishers. Writing this program was le- reader technology and then sell that copy
gal in Russia, and so in most of the world. to others without the publishers permis-
This process removes the various restric- sion. That would be a copyright viola-
tions (against copying, printing, text-to- tion31. In short they claimed that it helped
speech processing, etc.) that publishers to circumvent the technological measures
can impose on e-books. The program is put in place by them circumvention of
designed to work only with e-books that which is prohibited by the DMCA. They
have been lawfully purchased from sales invoked the provisions of DMCA and
outlets. ElcomSoft, Skylarovs employer requested the federal agencies in US to
produced and distributed this software act consequent upon which the FBI ar-
over the Internet. rested Skylarov when he came to US to
The Advanced e-Book Processor al- deliver a lecture at a conference32. The
284 J INTELLEC PROP RIGHTS, JULY 2003

arrest led to extensive protests over the your leisure. Nor can a music thus pro-
Internet and at the offices of Adobe. The tected be converted into another format
non-profit Electronic Frontier Founda- like MP3.
tion, which works to keep the digital In 1996, the industry developed an en-
space free, defended Skylarov and ulti- cryption scheme that employs an algo-
mately the Department of Justice permit- rithm configured by a set of keys to en-
ted Sklyarov to return home, but elected crypt a DVDs content called the Content
to proceed against his employer, Elcom- Scrambling System (CSS). This technol-
Soft, under the criminal provisions of the ogy is protected as a trade secret. The
DMCA. In December 2002, a jury acquit- industry then developed a licensing
ted ElcomSoft of all charges, completing scheme for distributing the technology to
an 18-month ordeal for the wrongly ac- manufacturers of DVD players. The
cused Russian software company. Some manufacturers were obliged to keep the
analysts feel that thus when the DMCA CSS algorithm confidential. They were
protects technology that in turn protects also required to prevent the transmission
copyrighted material, it often protects of the CSS data (e.g., the movie) from a
much more broadly than copyright law DVD drive to any internal recording de-
does. It makes criminal what copyright vice, including presumably a computer
law would forgive33. and the hard drive.
Following this incident, Russia issued In September 1999, Jon Johansson, a
a travel advisory to Russian programmers Norwegian teenager, collaborating with
travelling to US. Many foreign scientists two unidentified teenagers whom he met
expressed concern over travelling to US on the Internet, reverse engineered a li-
and some have withdrawn results of their censed DVD player designed to operate
scientific research from their websites34. on the Microsoft operating system, and
culled out from it the information neces-
The DeCSS Case sary to decrypt the CSS. Johansson was
It was the counsel of the publishing in- trying to develop a DVD player operable
dustry Charles Clark, who famously ob- on Linux, an alternative operating system
served in the run up to the WIPO Diplo- that did not support any licensed DVD
matic Conferences that answer to ma- players at that time, for use in his own
chine is machine35. The industry did take computer. Johanssons programme was
this advice seriously. With DMCA in appropriately called DeCSS and he
place movie and music companies and posted this on the Internet.
even book publishers are increasingly Eric Corley, the publisher of the maga-
bringing out works that are copy- zine 2600: The Hacker Quarterly and
protected or otherwise restricted by the website known as 2600.com, pub-
technological means. Thus you may not lished an article in his website about how
be in a position to copy the CD you the content descrambling system of Jo-
bought to the hard disc of your computer hansson worked. If a user runs a DeCSS
or take a printout of the e-book to read at program with a DVD on the hard disk,
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 285

the DeCSS will decrypt DVDs CSS pro- dividuals who violated someone elses
tection allowing the user to copy the secure system, like a bank or telephone
DVDs file. Corleys article about the company system, in order to obtain an-
DeCSS described how CSS was cracked other persons records. The powerful in-
and explained how it could be used to dustry groups protecting their IP rights do
copy DVDs. The article had links to have wide reach and their economic in-
where DeCSS could be found. Eight ma- terests to protect. Even his father, Per Jo-
jor motion picture companies brought hansson who owned the equipment was
DMCA suit against 2600 magazine seek- charged though the charge was later
ing to block it from publishing the dropped. However, on 7 January 2003,
DeCSS software program, which defeats the Norwegian Criminal Court consisting
the encryption used on DVD movies. of three judges, of which two were com-
Relying on the provisions of DMCA, puter experts, acquitted Johansson recog-
which prohibited circumvention of tech- nizing that he had the right to take the
nological measures such as the CSS and steps necessary to view his own DVDs on
trafficking in such circumvention tech- his own computers. The court observed
nology the court injuncted Corley from that no one could be punished for break-
providing hyperlinks to DeCSS sites36. ing into his own property38.
The magazine was not involved in the
development of software, nor was it ac- Effect on Scientific Research
cused of having used the software for any Critics also argue that the legislation
copyright infringement. It was served this implementing the technological measures
injunction as it did what a magazine was as adopted by the US (DMCA) and the
supposed to - report current events. EU (EU Copyright Directive 2001) stifle
The story does not end here. The pow- scientific research and academic and
erful Motion Picture Association of scholarly communication39. Legislative
America (MPAA) contacted the Norwe- prohibition on access controls put restric-
gian Economic Crime Unit and charged tions on what researchers could do with
Jon Johansson for unscrambling DVDs the data they study. There are a large
using DeCSS in 1999 (when he was 15 number of computer security and encryp-
years old) in a Norway court. Johansson tion researchers who deal with the issues
was charged with violating the Norwe- relating to circumvention of technological
gian Criminal Code section 145(2), which measures during their work. Research on
outlaws breaking into another persons high security computer firewalls and net-
locked property to gain access to data that work security needs constant analysis,
no one is entitled to access. Johanssons study and sometimes breaking anti-
prosecution marks the first time the Nor- circumvention technologies in order to
wegian government had attempted to develop more effective technologies.
punish individuals for accessing their Those who work on encryption research
own property37. Previously, the govern- or computer security related research face
ment used this law to prosecute only in- legal consequences due to these legisla-
286 J INTELLEC PROP RIGHTS, JULY 2003

tive enactments40. It is not merely com- of Technology in October 2002, noting


puter security and encryption researchers his concern that the DMCA had been
who may be targeted by the legislation. used to chill legitimate computer security
Any data in digital form can be protected research44.
by encryption and other technological Digitization and the potential for low
measures and those who distribute digital cost global communication have opened
data in this form may restrict what scien- new opportunities for dissemination and
tists and other researchers do with the use of scientific and technical databases
data. For example, a pharmaceutical around the world. The ability to access
company, which puts the results of tests the existing databases and the ability to
conducted on a drug claiming it is safe extract and recombine selected portions
might want to restrict the use of this data of them for research has become a key
permitting only certain tests to be con- part of the scientific process45. Access to
ducted by means of a click wrapc41. Such such information is vital to the develop-
provisions result in provision of monopo- ment and progress of science itself. Even
listic control to copyright owners of such in the new economy, scientific and tech-
database, which is not within the scope of nological advance requires progress in
traditional copyright law. basic sciences, which need wide dissemi-
There are certain exceptions to liability nation, as scientific progress today is
due to encryption research built into the most often a cumulative endeavour46.
DMCA. In the four years since the Even the greatest of authors stand on the
DMCAs enactment, critics argue that it shoulders of those who have gone before
has become increasingly clear that these them, and authorship will suffer if copy-
exceptions are simply too narrow to be of right control is extended too far47. Over-
any real use to the researchers. Computer arching intellectual property protection
science professors have found themselves can jeopardize the web of scientific dis-
entangled in litigation because of their course that makes research and develop-
academic activities, and universities and ment effective48.
software companies have had to include
attorneys in the research and development Effect on Innovation and Competition
process to ensure compliance with the It is also alleged that the DMCA is be-
DMCAs terms42. It is hence argued that ing used to hinder the efforts of legitimate
the DMCA has hindered the development competitors to create interoperable prod-
of technologies that can protect computer ucts. For example, Vivendi-Universals
networks from cyber-attacks43. The effect Blizzard video game division invoked the
of conflict between cyber security and DMCA in an effort to intimidate the de-
property rights on cyber security was velopers of a software product derived
highlighted by none other than White from legitimate reverse engineering. An-
House Cyber Security Chief, Richard other multinational, Sony Corporation
Clarke, who called for DMCA reform used the DMCA to threaten hobbyists
while speaking at Massachusetts Institute who created competing software for
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 287

Sonys Aibo robot dog, as well as to sue tailers invoked it to remove the details of
makers of software that permits the play- forthcoming sales from a site for bargain
ing of Playstation games on PCs. In each hunters. Apple Computer Inc. cited the
of these cases, the DMCA was used to DMCA to stop one of its dealers from
deter a marketplace competitor, rather producing and selling software that al-
than to battle piracy49. lowed Apples new DVD-burning tech-
nology to be used on earlier models of its
Another instance involves Microsoft
Macintosh computers. Apple didnt ex-
and a web based discussion forum hosted
plain its motivation, but commentators
by slashdot.org. In the slashdot forum
noted that upgraded older machines
that facilitated technologists to discuss
meant fewer sales of new Macs52.
issues on their bulletin boards, several
Some of the recent experiences show
individuals alleged that Microsoft had
that companies could claim violations
changed the open, non-proprietary Kerbe-
when competitors made compatible prod-
ros specification in order to prevent non-
ucts. The result, according to some ex-
Microsoft servers from interacting with
perts, would encourage monopolies and
Windows 2000. Many speculated that this
severely curtail consumer choice53. Lex-
move was intended to force users to pur-
mark a toner cartridge company has sued
chase Microsoft server software. Micro-
its competitor Static Control, which pro-
soft responded by publishing its specifi-
duces refill cartridges for Lexmark print-
cation. It did so by means of a click wrap
ers alleging that it violated DMCA by
I agree licence, which forbade disclo-
duplicating a special security device that
sure of the specification without Micro-
links Lexmark printers and toner car-
softs consent. Some smart technologists
tridges. This device is a security chip
figured out how to bypass this licence
added by Lexmark to the cartridge and
agreement, the results of analysis about
the printer. If the chips didnt execute a
the specification were posted on the fo-
secret handshake, the cartridge would not
rum after which there was heated discus-
work. If the cartridge had been refilled,
sion about it. Microsoft learned about it
by some one other than Lexmark, the
and threatened Slashdot.org to remove
chips would not let the printer operate. It
the postings alleging DMCA violation50.
was this device that was contended as
Microsoft surely may not be the only en-
violation of DMCA. Lexmark is accusing
tity in the world that would like to control
Static Control of violating the DMCA by
the wider communities for the use of its
deciphering its access code in order to
information51.
mimic the secret handshake. Though the
Companies that have nothing to do suit may go on for years, Lexmark has
with copyright protection have also dis- already won the first round by obtaining
covered the laws broad reach. Dow an injunction against its competitor.
Chemical Co used the DMCA to shut It is not that the entire industry is sup-
down a Website that attacked the com- porting strict copy protection law. Intel,
pany. Wal-Mart Stores Inc and other re- the leading chip manufacturer and a
288 J INTELLEC PROP RIGHTS, JULY 2003

member of Business Software Alliance, call non-rivalrous character of ideas and


which supports DMCA, has taken a lead- expressions. The sharing of a physical
ership position in Silicon Valley pointing good results in one person enjoying less
out the problems with expansive copy- of it while sharing of ideas does not
right proposals. Intel co-founder and Vice lessen others enjoyment of it. Whereas all
President, Les Vadasz warned the Senate tangible property is scarce ideas and ex-
in the year 2002 that a proposal to im- pressions are not giving them the charac-
plant copy-protection technology in terization as public goods. Hence all
nearly everything with a microprocessor rights normally associated with private
would have dire side effects54. Hewlett property are not extended to intellectual
Packard also appears to have taken the property and limitations are placed on
same position55. This apparently shows a exclusive enjoyment of these rights.
rift between the software developers and In the economic analysis of copyright,
hardware manufacturers in their apprecia- fair use57 is intended as a device to correct
tion of legal landscape in the digital certain type of market failures that are
world. likely to occur in the market for proper-
In the current policy landscape, with tised information created by copyright
such laws as the DMCA on the books, law. As per this theory, the cost of nego-
strict controls could lead to greater sti- tiating licence itself will deter the uses of
fling of innovation and free speech, ex- works by potential users if anticipated
perts argued at a recent conference on the benefit out of such use is less than the
law and policy of digital rights manage- cost of negotiating the licence. Fair use
ment at the University of California at doctrine allows the potential user to take
Berkeley56. the needed portion of the work and make
use of it without seeking a licence, thus
Effect on Fair Use enabling user that otherwise will be frus-
Authors property rights in an expres- trated. Fair use doctrine is the societies
sive work legally restrain others from the investment for further creation of works58.
use of that expression. As part of the bal- Fair use doctrine epitomizes the pur-
ance between the exclusive rights of au- pose of copyright protection, namely,
thors, artists and other creators on the one promotion of learning and thereby cul-
hand, and the social goal of wide dis- tural progress of the society. The princi-
semination of knowledge on the other, ple of fair use doctrine in copyright law is
international copyright conventions allow also recognized by the Agreement on
countries to place limits on the right to Trade-Related Aspects of Intellectual
prevent unauthorized use and reproduc- Property Rights (TRIPS), which permits
tion in certain prescribed circumstances. these exceptions in special cases, which
The rationale for providing fair use provi- do not conflict with the normal exploita-
sion is that intellectual property is differ- tion of the work nor unreasonably preju-
ent in kind as compared to tangible prop- dice the legitimate interests of the right
erty. This is because of what economists holder59. Overbroad control on copyright
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 289

works by the authors may set in motion permit contracting parties to devise new
the law of diminishing returns, resulting exceptions and limitations that are appro-
ultimately in private control over knowl- priate in the digital network environment.
edge that each generation must acquire The centrality of fair use as a critical
anew. Knowledge in every country is the and crucial element in the copyright phi-
surest basis for public happiness and for losophy is thus recognized by the treaties.
its propagation access to the cultural One of the major criticisms against
products of the society must be reasona- DMCA is that it virtually stops the fair
bly available for public at large. Fair use use rights in the electronic environment.
preserves proprietary rights in creative Advances in technology facilitate fine-
works while accommodating public inter- grained control over uses of works and
est in dialogue, deliberation and advance legislations like the DMCA facilitate ac-
of knowledge60. centuation of this control. Society faces
The academic community world over threat to free speech from these controls
was keen that when the new treaties were as is evident from the case law develop-
formulated it should not restrict the scope ments in the United States, which indicate
of fair use merely because of switchover that whenever there was conflict between
from analogue to the digital medium61. In free speech and property rights in recent
order to meet these concerns as well as to years, property right has triumphed63.
ensure that the potential of distance edu- While combating piracy is definitely a
cation was not curtailed, India introduced social objective a provision like that of
an amendment to the Preambles of the DMCA extends total and unilateral con-
Internet Treaties62, which now reads as trol to copyright owners over their work
follows: tilting the copyright balance.
Recognizing the need to maintain a An example is the copy-protected CDs
balance between the rights of authors and now being marketed in the US and else-
the larger public interest, particularly where. Such CDs could be played only on
education, research and access to infor- instruments designed to play them but
mation, as reflected in the Berne Conven- they cannot be used on different formats.
tion Whatever the impact that these copy pro-
Further the Agreed Statement concern- tection technologies may have on online
ing Article 10, which deals with limita- infringement, they are certain to interfere
tions and exceptions, reads as follows: with the fair use expectations of consum-
It is understood that the provisions of ers. For example, copy-protected discs
Artcle 10 permit Contracting Parties to will disappoint hundreds of thousands of
carry forward and appropriately extend consumers who have purchased MP3
into the digital environment limitations players, despite the fact that making an
and exceptions in their national laws, MP3 copy of a CD for personal use is a
which have been considered acceptable fair use. Making mix CDs or copies of
under the Berne Convention. Similarly, CDs for the office or car are other exam-
these provisions should be understood to ples of fair uses that are potentially im-
290 J INTELLEC PROP RIGHTS, JULY 2003

paired by copy-protection technologies64.


Another cardinal principle of copyright In a Flux?
applicable to printed works is that of first The DMCA contains a provision which
sale exhaustion. This means that once enables the US Copyright Office to con-
sold the right of the owner ceases and the duct a triennial rulemaking proceeding to
user is free to use the work. Technologi- determine whether there are particular
cal protection measures, particularly as classes of works as to which users are,
framed under DMCA make this principle or are likely to be, adversely affected in
meaningless. To top it all, protection their ability to make non- infringing uses
through technological measures is for if they are prohibited from circumventing
infinite period while copyright is time such technological measures66. This
limited. rulemaking process contemplates that the
We are entering an era where books, Library of Congress in consultation with
music and movies will increasingly be the copyright office could incorporate
copy-protected and otherwise restricted specific exemptions, which would facili-
by technological means. Whether schol- tate circumvention technological meas-
ars, researchers, commentators and the ures. Such a process is currently under-
public will continue to be able to make way in US and the first public hearings
legitimate fair uses of these works will are scheduled to begin in April 200367 to
depend upon the availability of tools to decide what changes, if any, should be
bypass these digital locks. What the made to the section of the DMCA that
DMCA does is to ban the availability of restricts bypassing copy-protection
all technologies, which enable circum- schemes. The necessity of such exercises
vention and thus make fair use impossi- show the need for law to be flexible in the
ble. Copyright owners argue that these digital environment as the technologies
tools, in the hands of copyright infringer evolve and market practices develops rap-
can result in Internet piracy. But the idly. It is also worthwhile to note that the
traditional remedy for piracy under copy- lawmaking process is a participatory one
right law has been to seek out and prose- as anyone who is interested has been
cute the infringer, not to ban the tools that asked to respond to the notification.
enable fair use. After all, photocopiers, The criticism against DMCA has, it
VCRs, and CD-R burners can also be appears, forced the US policymakers also
misused, but no one would suggest that to take notice. There are two bills68 cur-
the public give them up simply because rently pending in US Congress to specifi-
they might be used by others to break the cally permit circumvention for fair use
law65. It may also be noted that authors purposes. One appropriately called the
echoed similar apprehensions when li- Balance Act aims to ensure that con-
braries were set up in the 19th century but sumers are allowed to make copies of
experience shows that it has only been lawfully obtained digital content for their
favourable to authors as it resulted in in- personal use. There are other lawmakers
creased sale of books. who publicly voice their concern. We
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 291

never contemplated cases such as Lex- in information and communication tech-


marks when the DMCA was written, a nologies are transforming the production
member of the US Congress, Howard and dissemination of copyright works.
Berman stated at a Silicon Valley panel Though began as a system to protect the
that examined the law. Let some of these authors rights, today the copyright system
things play out in court decisions, Ber- protects right holders including transna-
man said69. Laws adaptation to technol- tional companies with commanding
ogy does not seem to be an easy one. power in the global economy. This proc-
ess has been accompanied by a strength-
Developing Country Concerns ening of national and international copy-
Copyright related issues are increas- right protection. This is what UNESCOs
ingly relevant for developing countries as World Information Report has to say:
they enter information age and as they Copyright has emerged as one of the
struggle to participate in the global most important means of regulating the
knowledge-based economy. Access to international flow of ideas and knowl-
books and other learning materials have edge-based products, and will be a central
been a core concern of developing nations instrument for the knowledge industries
that they voice at various forums. It found of the twenty-first century. Those who
international acceptance in the copyright control copyright have a significant ad-
world during the 1967 Stockholm Revi- vantage in the emerging, knowledge-
sion of Berne Convention70. These con- based global economy. The fact is that
cerns accentuate as the world moves over copyright ownership is largely in the
to the information age. As the World hands of the major industrialized nations
Bank has noted: and of the major multimedia corporations
If knowledge gaps widen, the world placing low per capita income countries
will be split further, not just by disparities as well as smaller economies at a signifi-
in capital and other resources, but by the cant disadvantage72.
disparity in knowledge. Increasingly, capi- Developing countries need to under-
tal and other resources will flow to those stand these issues in the digital context
countries with the stronger knowledge clearly and frame policies in their na-
bases, reinforcing inequality. But threat tional interest. The Government of United
and opportunity are opposite sides of the Kingdom had set up a Commission on
same coin. If we can narrow knowledge Intellectual Property73 to examine how
gaps and address information problems intellectual property rights might work
it may be possible to improve incomes better for poor people and developing
and living standards at a much faster pace countries. The final report of the Com-
than previously imagined71. mission titled Integrating Intellectual
Due to the centrality of knowledge in Property Rights and Developmental Pol-
the post-industrial economy creation of icy was published on 12 September 2002.
knowledge products assume critical im- The Commission found that the avail-
portance in development. Rapid advances able evidence indicates that access to
292 J INTELLEC PROP RIGHTS, JULY 2003

books and other materials for education copies of copyrighted works in digital
and research remains a critical problem in formats. Since works may not be accessi-
many developing countries, particularly ble without payment, even for legitimate
the poorest. Most developing countries uses, for developing countries where
remain heavily dependent on imported Internet connectivity is limited and sub-
textbooks and reference books, as this scriptions to on-line resources unafford-
sector is often not commercially feasible able, it may exclude access to these mate-
for struggling local publishers to enter. rials altogether and impose a heavy bur-
The prices of such books are beyond the den that will delay the participation of
means of most students74. They recom- those countries in the global knowledge-
mended: based society.
In order to improve access to copy- Stating that issues surrounding access
righted works and achieve their goals for to information and knowledge over the
education and knowledge transfer, devel- Internet are still emerging, the Commis-
oping countries should adopt pro- sion concluded that it was premature at
competitive measures under copyright the present time for developing countries
laws. Developing countries should be to go beyond TRIPS standards on intel-
allowed to maintain or adopt broad ex- lectual property protection.
emptions for educational, research and With reference to the provisions of the
library uses in their national copyright DMCA, the Commission had the follow-
laws. The implementation of international ing observation:
copyright standards in the developing We believe developing countries
world must be undertaken with a proper would probably be unwise to endorse the
appreciation of the continuing high level WIPO Copyright Treaty, unless they have
of need for improving the availability of very specific reasons for doing so, and
these products, and their crucial impor- should retain their freedom to legislate on
tance for social and economic develop- technological measures. It follows that
ment75. developing countries, or indeed other de-
However, with reference to protection veloped countries, should not follow the
of technological measures as contem- example of the DMCA in forbidding all
plated in the WCT, the Commission circumvention of technological protec-
noted that such measures pose threats to tion. In particular, we take the view that
access and diffusion of knowledge and legislation such as the DMCA shifts the
technology. The Commission observed balance too far in favour of producers of
that the growing trend within publishing copyright material at the expense of the
and software industries towards distribu- historic rights of users. Its replication
tion of content online, together with ac- globally could be very harmful to the in-
cess restrictions such as encryption tech- terests of developing countries in access-
nologies and digital rights management ing information and knowledge they re-
systems rescinds the traditional fair use quire for their development76.
rights to browse, share, or make private
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 293

Differing Approaches ently the public interest in having copy-


In the implementation of provisions re- right protection may not necessarily be
lating to technological measures itself co-extensive with the interest of copy-
there are other approaches than the one right owners, particularly when the ma-
taken by US in its DMCA. Australia is an jority of copyright royalties are paid to
example where digital rights are protected copyright owners located overseas80. The
without compromising fair use excep- differing approaches in incorporating the
tions. The Australian Digital Agenda Act, treaty provisions in national legislations
which modified its copyright law to make reinforce the hypothesis that each nation
it compatible with the WIPO treaties, determines the copyright balance on the
bans the preparatory activities that deal basis of its domestic imperatives and the
with circumvention like manufacture, net trade balance.
distribution, import, sale, etc of devices Japan also approached the issue differ-
that enable circumvention. Unlike the ently. The new article 120bis(ii) of the
DMCA, the Australian Act doesnt ban Japanese Copyright Act81 makes it a
the act of circumvention as such but it criminal offence to circumvent techno-
only bans making of and commercial logical protection measure as a busi-
dealing in circumvention devices. This ness in response to a request from the
approach limits the scope of circumven- public82. Consequently circumvention for
tion prohibition and enables fair use pro- private use is not covered. However, arti-
visions. Further, the Australian Act spe- cle 30 of the Japanese copyright law,
cifically permits the use of these devices which exempts private copying states that
for acts permitted under the law77. The such copying constitutes an infringement
ban does not apply if the person gives to if the person making the copy knows that
the supplier of a device or service for cir- such reproduction becomes possible by
cumvention a declaration stating that such circumvention of technological meas-
device or service is to be used only for ure83. Thus it is not circumvention that is
permitted purposes. The ban does not ap- unlawful, but making of the copies.
ply to making or importing of a circum- The European Union Copyright Direc-
vention device for use or supply exclu- tive84 deals with technological measures
sively for permitted purposes78. in article 6(1), which states member
The reasons for such differing ap- states shall provide adequate legal protec-
proach are not far to seek. Though both tion against circumvention of technologi-
the United States and Australia have cal measures, which the person concerned
strong commitments to protection of in- carries out in the knowledge, or with rea-
tellectual property, they do not share the sonable grounds to know, that he or she
same national interest or the international pursues that objective. It appears that as
market for copyright material and this is opposed to the DMCA there is a subjec-
reflected in their respective legislation79. tive element involving intention or rea-
Australia is a net importer of copyright sonable grounds of knowledge; an ele-
material by a very large margin. Appar- ment of mens era is involved85. Some
294 J INTELLEC PROP RIGHTS, JULY 2003

analysts feel that this may have the effect beneficiaries exercising these exceptions.
when implemented in specific cases of Member States are also obliged to estab-
being less vigorous than the DMCA86. lish mechanisms for effective and mean-
Article 6(2) of the directive deals with ingful negotiations between all interested
tools for circumvention. It states mem- parties with respect to design of techno-
ber states shall provide adequate legal logical measures89.
protection against the manufacture, im- The real impact of the EC directive
port, distribution, sale, rental advertise- could be gauged only after the member
ment for sale, rental, or possession for States amend their respective legislations
commercial purposes of decryption and judicial pronouncements come out in
technology primarily designed to circum- few cases.
vent. There is no knowledge requirement
here but possession for non-commercial A Public Policy Tool
purposes seem to be allowed. Copyright law constitutes a kind of in-
Article 5 of the EC copyright directive formation policy, serving the public inter-
deals with fair use provisions. Article est in maximizing the availability of in-
5(2) and 5(3) contains a list of about 20 formation products by, on the one hand,
exceptions, which should be made avail- granting an exclusive right and thereby an
able to the users. They include: (i) repro- incentive to create, and, on the other
graphy; (ii) certain permitted acts by li- hand, by limiting the monopoly copyright
braries, educational institutions, museums provides to ensure access to such works90.
and archive; (iii) the making of certain Most of the copyright products having
ephemeral copies for archival purpose by impact on access to information, educa-
broadcasters; (iv) the reproduction of tion and cultural products, developing
broadcasts by certain social institutions; countries where access to information is a
(v) certain uses for scientific or teaching critical need of the society, need to cali-
purposes; (vi) certain uses by the dis- brate this public policy tool carefully.
abled; (vii) certain uses for public secu- The intertwining of copyright and trade
rity or administrative parliamentary or issues has brought new dimensions into
judicial proceedings87. With respect to the framing of copyright policies. The
private copying member States may take recognition of economic importance of
similar measures to ensure efficacy of copyright and neighbouring rights arose
private copying exception existing in na- from their increased role in trade relations
tional copyright laws88. With reference to and international economic integration
exceptions in the context of technological powered by technological develop-
measures, the Article 6(4) provides that ments91. Copyright issues are now put
member states should promote voluntary before policy makers as trade issues92 due
measures by right owners to ensure that to which the perceived national interests
technological measures are designed by of a country in terms of trade advantage
right owners to accommodate the listed play a role in the determination of its
exceptions or otherwise provide means of copyright policy. A nation, which is a net
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 295

exporter, may naturally seek a higher the new, dominant conception that has
level of protection while a net importer emerged in response to changes in tech-
may be content with a loose regime. This nology and market trends, the primary
was evident in the 19th century relations concern is rewarding investors, rather
on copyright when a negative trade bal- than encouragement of individual crea-
ance in terms of trade in published mate- tion or encouragement of dissemination
rial, particularly books, made US choose of knowledge96.
a loose regime. Charles Dickens had trav- Owing to its economic importance,
elled to America to impress upon that various interest groups exert considerable
country of the need for providing stronger influence in framing national copyright
protection for authors. In the 20th century, policies. According to Litman :
a positive balance of trade pushed US
the history of (US) copyright legisla-
towards Berne93. According to Goldstein:
tion has been characterized by multilat-
todays worshippers in the Berne Ca-
eral bargaining among affected stake-
thedral have very different visions of
holders. Some of the provisions in the
paradise. For Americans, it is a place
current statute are there because the af-
where the economic logic of rights ex-
fected interest groups asked for them, and
tending against every new and valuable
the other groups didnt object. Others are
technological use of copyrighted works is
the result of hard fought bargaining
respected by every other Berne adherent.
among affected stakeholders97.
For the Europeans and other net importers
of copyrighted works, it is a smaller Commenting on the roles various in-
place, where the subject matter and rights terest groups played in the (WIPO) Dip-
concerned are confined to their traditional lomatic Conference in 1996, Dr Ayyer
pattern, with no room for newer tech- states that a countrys position on a copy-
nologies like home taping that are better right issue lay close to the centre of grav-
left to neighbouring rights94. ity of interest groups in that country98.
Due to the importance of copyright The policy on copyright of a national re-
products in international trade and conse- gime thus requires copyright balance to
quent economic importance, of late there be determined according to real domestic
has been a trend to seek excessive protec- imperatives rather than abstract consid-
tion to the right holders. Like in the area eration of the relative position of authors
of patents, in the field of copyright, there and copyright users99.
has been a fundamental shift from the Due to all these factors, copyright pol-
system originally based on non- commer- icy making has become a very complex
cial considerations- the benefits that the issue susceptible to various pressures
society may derive from creative author- from within and without a national copy-
ship and dissemination of ideas- to almost right regime. The ultimate balance arrived
a law of misappropriation95. The ultimate at by any system will thus be the result of
objective would be to protect the com- a trade off between various interests the
mercial value of creative works. Under law seeks to protect. The WIPO treaties
296 J INTELLEC PROP RIGHTS, JULY 2003

do provide certain flexibility to individual spirit in our legislation. Copyright being


countries to develop exceptions and limi- an area where cultural ethos of the society
tations that are appropriate to their par- are reflected, even our courts have re-
ticular circumstances100 The goal of pol- minded us of our obligations to make our
icy makers is to calibrate the copyright national ethos to be reflected in our legis-
balance in such a way that it provides lation. In Indian Performing Rights Soci-
strong and effective rights, but within ety vs Eastern India Motion Picture As-
reasonable limits and with fair excep- sociation102, Justice V R Krishna Iyer
tions101. This by no means is an easy task pointed out an un-Indian feature which
and governments will have to reconcile existed in the then copyright law. The law
these seemingly contradictory objectives existing then required a musical work to
keeping their national interests and do- be reduced in writing or in graphic form
mestic imperatives in view. for protection, a condition that was alien
to the age-old practices in Indian systems
Needed- A Swadeshi Policy of music. Justice Krishna Iyer noted, Of
The Indian Copyright Act is considered to course, when our law is intellectual bor-
be a very effective piece of legislation. It rowing from British reports, as admittedly
has helped flowering of our industries in it is, such exoticism is possible. Stating
the copyright field and maintains the right the importance of performers in Indian
copyright balance. While ensuring reward music and noticing that the singer had no
to the creators, it is conscious of the edu- rights as per law, he noted that the disen-
cational needs in a country where mil- titlement of the musician or musical art-
lions seek access to education at all lev- ists to copyright is un-Indian. The learned
els. Specific provisions exist in our Act judge stated that these observations were
for granting compulsory licences for edu- made as art depends on ethos and aes-
cational, scientific, and technical books. thetic best of people and universal norms
In order to ensure access to educational notwithstanding, each country must pro-
and scientific materials there are specific tect its creative talents. Admitting that
fair use provisions in our Act that deal law making is the domain of the Parlia-
extensively with educational concerns. ment, the court through this obiter dictum
Being a culturally rich and diverse nation, communicated the infirmities as existed
the Act seeks to promote and protect its in the law. The law was then amended
cultural idioms and practices. There are changing the definition of musical
specific provisions in the Act making the works and granting rights to perform-
performance of a literary, dramatic or ers103. The philosophy underlying our
musical work or the communication to copyright law as may be deduced from
the public of such work or sound re- these judicial pronouncements and legis-
cording in the course of any bona fide lative actions is that the law should reflect
religious ceremonies etc, a non-infringing the Indian realities, reflect its cultural
act. practices and suit its national interest.
These provisions show the swadeshi In the emerging global economy, intel-
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 297

lectual property rights does not remain as right matters as it deals with economic
a distinct or self contained regime but returns of the right holders, from the
rather acts as an important and effective humble author to multinational recording
policy instrument that would be relevant studios and publishing houses to movie
to a wide range of socio-economic, tech- moghuls. The content providers or the
nological and political concerns104. In the right holders have obvious stakes in-
new economy, a nations ability to con- volved and it is natural for them to protect
vert knowledge into wealth and social their interests and one expects them to do
good will determine its future105. If copy- so. But who will protect the larger public
right law regulates the cultural products interest? Who will look at the broader
in the marketplace such regulations have issues of maintaining the unique cultural
to reflect the cultural ethos and economic flavours or ensure access to information
demands of a nation. Indian copyright at affordable cost to the people? Who will
law keeps this perspective in its philoso- guard zealously the freedom of fearless
phy. The statutory licensing provisions in discourse in the academic and scientific
the Act, which dilutes authors absolute fields? As emerging technologies throw
rights underlines, this philosophy106. And up new challenges and as the law adapts
the latest example is the amendment to these developments, these issues ac-
made in the year 1999 which introduced quire increased salience. An average citi-
specific provisions for fair use of com- zen of this country will only turn to the
puter programs107. This approach in- learned academia to provide these an-
grained in the present copyright law will swers. If we take the US example it is the
have to be carried forward in the digital academicians, indeed few professors of
environment also. The Indian policymak- law, who steer the copyright debate so
ers thus have the task of framing a legis- that right holders and public officials do
lation which upholds its national interests, not grab from public what is their due.
suit the genius of this nation and protect Professor Lawrence Lessig of Stanford
its authors. Law School led the constitutional chal-
lenge of the extension of term of copy-
Role of Academia right works in US. Professor Pamela Sa-
Gone are the days when copyright law muelson of University of California, Ber-
could be regarded as just another piece of keley, Professor Jessica Litman, Wayne
legislation. In the new information and State University Law School, Professor
knowledge-based economy, this branch James Boyle, Duke Law School, Profes-
of intellectual property rights extends its sor Peter Jaszi, Washington College of
influence to almost all spheres of human Law, American University are but few of
activity. Hence legislating in this area the famous examples of academia active
should be everyones concern. All legisla- in this field. The distinguished Indian
tive processes involve advocacy, lobby- academicians should take serious interest
ing, pressures and counter pressures. in legal policy matters on copyright so
Probably these get accentuated in copy- that decisions relating to copyright law
298 J INTELLEC PROP RIGHTS, JULY 2003

are made after informed public debate. lating too technological measures as classi-
What they need to protect is what they fied in article 11 of the WCT
cherish most - maintain access to infor- 16 Ayyer R V V, Interest or right? The process
and politics of a diplomatic conference on
mation. For restrictions on free flow of copyright, Journal of World Intellectual
information are restrictions on liberty it- Property, January 1998, 28. This article
self. There is a vital link between liberty gives a detailed analysis of the issues in-
and learning. And a balanced copyright volved in framing of the treaties and details
the contribution of the Indian delegation of
law is required for ensuring an enlight- which the author was the leader
ened and informed public, a prerequisite 17 Article 20 of the WCT and Article 29 of the
for democracy to thrive. WPPT require that 30 countries need to join
the treaty for it to come into force. WCT en-
References and Notes tered into force on 6 March 2002 and WPPT
1 Stewart S M, International Copyright and entered into force on 20 May 2002.
Neighboring Rights( Buttorworths, London), 18 For an analysis of issues in the Indian con-
1989, 2nd edition 312 text please see Gopalakrishnan N S, WIPO
2 Lehman Bruce A, Intellectual property and Copyright and Performers and Phonogram
the national and global information infra- Treaties- Implications for India, 21 Academy
structure, WIPO World Wide Symposium on Law Review, 1(1997)
Copyright in the Global Information Infra- 19 The list may be seen at
structure, Mexico City, 22 to 24 May1995, http://www.wipo.int/treaties/notifications/wc
WIPO, Geneva, 76 t/index.html for WCTand
3 Ficsor Mihaly, The Spring 1997 Horace S. http://www.wipo.int/treaties/notifications/wp
Mangers Lecture Copyright for the Digital pt/index2.html for WPPT
Era: WIPO Internet Treaties, Columbia VLA
20 http://ecommerce.wipo.int/survey/html/3.htm
Journal of Law and Arts
l#3a
4 Clark Charles, Publishers and Publishing in
the Digital Era, WIPO Worldwide Sympo- 21 As claimed in the WIPO site at
sium on Copyright in the Global Information http://www.wipo.int/copyright/en/index.html
Infrastructure, Mexico City, 1995,WIPO 22 WIPOs Digital Agenda announced in Sep-
publication, WIPO ,Geneva tember 1999 by Dr Kamal Idris, Director
5 http://www.wipo.int/treaties/ip/wct/index.ht General of WIPO may be seen at
ml http://ecommerce.wipo.int/agenda/index.html
6 http://www.wipo.int/treaties/ip/wppt/index.ht 23 Digital Millennium Copyright Act, Pub L
ml No 105-304, 112 Stat. 2860 (1998), 1201
7 Article 4 of WCT available at http://thomas.loc.gov/cgi-
8 Article 5 of WCT bin/query/z?c105:H.R.2281.ENR:?tag=nl.
9 Article 7 of WCT See also U S Copyright Office Summary,
10 Article 8 of WCT The Digital Millennium Copyright Act of
11 Article 6 of WCT 1998 (December 1998)
12 Article 11 of WCT
24 Directive 2001/29/EC of the European Par-
13 Article 12 of WCT
liament and of the Council of 22 May 2001
14 The Article 10 of WCT
on the harmonization of certain aspects of
15 In addition to protection of technological
copyright and related rights in the informa-
measures protection of rights management
tion society. May be seen at
information may also be categorized as a
http://www.eurorights.org/eudmca/Copyrigh
technological adjunct but for the purpose of
tDirective.html
this discussion we are limiting to issues re-
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 299

25 Pamela Samuelson, Intellectual property and 38 For more on Johanssen case please see
the digital economy: Why the anti- http://www.eff.org/IP/Video/DeCSS_prosecu
circumvention regulations need to be re- tions/Johansen_DeCSS_case/
vised, 14 Berkeley Tech Law Journal, 39 For a detailed analysis, see Samuelson,
519,1999, available at Pamela, Anticircumvention rules: Threat to
http://www.sims.berkeley.edu/~pam/papers/ science, Science, 14 September. 2001, 2028
Samuelson_IP_dig_eco_htm.htm 40 ibid
26 For a detailed discussion on the DMCA, 41 ibid
Litman Jessica, Digital Copyright, Prome- 42 Jonathan Band, Congress unknowingly un-
theus Books, New York (2001) dermines cyber-security, Mercury news,16-
For a discussion of the history and drafting 12-02, available at
of the Digital Millennium Copyright Act, http://www.siliconvalley.com/mld/siliconvall
see Litman supra, 122-150 ey/4750224.htm
27 McCullagh Declan, US-Singapore trade pact 43 ibid
echoes DMCA CNET News. com, 6 May 44 ibid
2003. The sub title of the article reads 45 Samuelson Pamela, note 39 supra.
Digital Millennium Copyright Act has be- 46 Lawrence H Summers and J Bradford De-
come Americas newest export Long; New Rules for a New Economy,
28 ibid. Business Standard , 14 June 2002
29 A more detailed analysis of the conse- 47 Vinje Thomas C, Should we begin digging
quences of DMCA may be seen at Unin- copyrights grave? European Intellectual
tended Consequences: Four Years Under the Property Right, Issue 12, 2000
DMCA, compiled by the Electronic Frontier 48 Lawrence H Summers and J Bradford De-
Foundation (EFF) available at Long, supra. Summers Lawrence H is for-
http://www.eff.org/ . This foundation set up mer US Secretary of the Treasury and is
in the US is a non-profit group of lawyers, President of the Harvard University. J Brad-
volunteers, and visionaries working to ford DeLong, former Assistant US Treasury
protect digital rights with the stated Secretary is Professor of Economics at Uni-
mission-with digital rights and freedom for versity of California at Berkeley. They argue
all that governments has a large role to play in
30 EFF, ibid devising policies in the new economy but
31 See Lessig Lawrence, Jail Time in the Digi- laments that we know too little about how to
tal Age, New York Times, 30 July 2001 devise policies and institutions that would
32 ibid reconcile seemingly contradictory objectives
33 Lessig Lawrence ibid. See also Reuters Ltd, of encouraging entrepreneurship and provid-
Lawyers say Digital Copyright Law Uncon- ing incentives for innovation
stitutional, FindLaw, (2April 2002) at 49 EFF,note 29 supra
http://news.findlaw.com 50 Samuelson Pamela, see note 25 supra
34 EFF, note 29 supra 51 ibid
35 see note 4 supra 52 Streitfeld David, Media copyright law put to
36 Universal city Studios Inc vs Reimerders unexpected use, Los Angeles Times, 23
2001 US App. Lexis 25330. (US 2nd Cir- February 2003 available at
cuit). The district court decision is reported http://www.latimes.com/business/la-fi-
as 111 F Supp. 2d 294 SDNY 2000 dmca23feb23,1,4074563.story
37 EFF media release on 7 January 2003 avail- 53 ibid
able at 54 McCullagh Declan, Techs love-hate rela-
http://www.eff.org/IP/Video/DeCSS_prosecu tionship with the DMCA, CNET News.
tions/Johansen_DeCSS Com, 10th March 2003 at
http://news.com.com/2010-1071-
991676.html?tag=nl
300 J INTELLEC PROP RIGHTS, JULY 2003

55 ibid Intellectual Property. The full report of the


56 Robert Lemos, Experts: Copyright law hurts Commission on Intellectual Property is
technology, CNET News.com, 1March 2003, available at
available at http://news.com.com/2100- http://www.iprcommission.org/papers/pdfs/f
1023-990689.html inal_report/Ch5%20.pdf
57 For a detailed economic analysis of fair use 72 UNESCO(1998) World Information Report
provisions please see Gordon Wendy J, Fair 1997/98 ,327,as quoted in the CIPR report,
use as market failure: A structural and eco- note 51 supra
nomic analysis of the Betamax case and its 73 The Commission had its Chairman, Dr John
predecessors, 82 Columbia Law Review Barton, George E Osborne Professor of
100(1982), a summary of which may be Law, Stanford University, California, USA
seen in Fair use infrastructure for rights and the members were Mr Daniel Alexander
managemnet systems by Burk Dan L and Barrister specialising in Intellectual Property
Cohen Julie E, Harvard Journal of Law and Law, London, UK, Professor Carlos Correa,
Technology, 15 (1) 2001 Director, Masters Programme on Science
58 Burk Dan L and Cohen Julie E, ibid and Technology Policy and Management,
59 Article 13 of the TRIPS Agreement University of Buenos Aires, Argentina, Dr R
60 Harper and Row 471 USSC at 560 A Mashelkar, FRS, Director General, Coun-
61 See Ayyer R V V, note 16 supra. Also the cil of Scientific & Industrial Research and
statement of US library associations, titled Secretary to the Department of Scientific
Fair Use in the Electronic Age: Serving the and Industrial Research, Delhi, India,Dr Gill
Public Interest,available at Samuels, CBE,Senior Director of Science
http://www.hg.org/cgi- Policy and Scientific Affairs (Europe) at
bin/redir.cgi?url=http://fairuse.stanford.edu/ Pfizer Inc., Sandwich, UK,Dr Sandy Tho-
62 Ayyer R V V, see supra, 19 mas, Director of Nuffield Council on Bio-
63 Samuelson Pamela, see note 39, supra ethics, London, UK
64 EFF, see note 29 above 74 CIPR report, 112, note 51 supra
65 ibid 75 ibid, p 113
66 See US copyright Office notification avail- 76 ibid, p116
able at 77 See Section 116A(3) of the Australian
http://www.copyright.gov/fedreg/2003/68fr1 Copyright Act
3652.html?tag=nl 78 Section 116A(4), ibid
67 ibid 79 Loughlan P, Music on hold: the case of
68 By Congressmen Boucher (Bill no.H.R.107, copyright and the telephone, 18, Sydney Law
called the Balance Act) and Lofgren (Bill Review, 1996, 342 at 344 quoted in Fitz-
no.H.R.1066) patrick, Simon (2000), Copyright imbalance:
69 Quoted in Los Angeles Times, note 16 ibid US and Australian responses to the WIPO
70 Special provisions were introduced for de- Digital Copyright Treaty, University of
veloping countries to have compulsory li- Sydney, European Intellectual Property Re-
censing system in their copyright laws with view, 226
respect to translations and reproductions of 80 ibid
works for educational purposes [Article I 81 An English translation of the Japanese
Article V of Appendix to the Paris Act Copyright Act is available at
(1971) of the Bern Convention]. These pro- http://www.cric.or.jp/cric_e/ecolj/cl.html
visions find place in the Indian Copyright 82 Kamiel Koelman J, A hard nut to crack: The
Act in chapter VI that deals with licenses protection of technological measures, Euro-
(see sections 32 and 32A) pean Intellectual Property Review, Issue 6,
71 World Bank (1999) World Development re- 2000, 272
port 1998/99 Knowledge for Development 83 ibid
quoted in the report of the Commission on 84 note 24 supra
THOMAS: DIGITAL TECHNOLOGIES AND EMERGING COPYRIGHT SCENARIO 301

85 Terese Foged, A comparative analysis of US 97 Litman Jassica, New copyright paradigms


vs EU approach on implementation of tech- www.law.wayne.edu/litman/papers/paradig
nological protection measures (2002) avail- m.htm
able at http://www.jur.ku.dk/it- 98 Ayyer R V V, note16 supra12
ret/Specialer/Foged%20Terese%20- 99 Fitzpatrick Simon, note 30 supra, 216
%20analysis...PDF 100 http://ecommerce.wipo.int/survey/html/3.htm
86 ibid l#_ftnref102
87 Vinje Thomas C, Should we begin digging 101 ibid
copyrights grave? European Intellectual 102 AIR 1977 SC 1443
Property Review, Issue 12, 2000,551 103 See section 2(P) dealing with musical work
88 ibid and section 38 dealing with performers
89 ibid rights
104 Mashelkar R A, Intellectual Property Rights
90 note 54 supra
and the Third World, Council of Scientific
91 WIPO (1994), International system of pro- and Industrial Research, New Delhi
tecting copyrights and neighbouring rights, 105 ibid
International Bureau of WIPO, Geneva 106 See for example, sections 31, 31A, 32, 32A
available in Regional Copyright Seminar for and 52j of the Act
Asia Pacific, Tokyo 1993, WIPO, Geneva 107 These provisions are criticized by the US
92 Litman Jessica, note 25 Supra, 81 Special 301 report released recently claim-
93 The United States joined the Berne Conven- ing that it dilutes the protection provided to
tion in 1988 only the authors. It however overlooks the fact
94 Goldstein Paul (1994), Copyrights High- that US courts had legitimised these reverse
way, Hill and Wang, 169 engineering of computer programs, for ex-
95 Correa Carlos M, Fair use in the digital era, ample see Accolade Sega V, 977 F2d (1992)
available at or Atari Games Corporation vs Nintendo of
http://webworld.unesco.org/infoethics2000/d America Inc 964 F. 2d 965 (9th on 1992).
ocuments/paper_correa.rtf The DMCA also contains provisions, which
96 ibid allow reverse engineering