JUDICIAL APPROACH IN DEALING WITH COPYRIGHT INFRINGEMENTS IN CYBERSPACE

Cyberspace cab ne called a virtual world or a non physical place created by networking on computers where people all around the world can interact. Some people also call it a global network which reunited IT infrastructure, telecommunications and computer processing systems to facilitate individuals with a complete social cyber experience embedded with interconnectivity, exchange of ideas and information sharing. Below shows the rising number of people that have invested their time using Internet over the years.

Internet usage has seen a potential rise over the years. With more common usage of Internet it has become easier to obtain documents and material that is available online. Further using it for unauthorised things by violating the copyright of the creator even though by changing minor contents. One of the major issues faced by cyberspace community is Piracy. The copyright Act, 1957 does not completely cover piracy but it is still considered an infringement and is punishable under section 51, section 65A and 65B of the Copyrights Act. The most affected by this type of infringement is the entertainment industry. There are many third party websites and portals that release movies before the official release. In the case of Microsoft Corporation v Yogesh Popat, The Delhi High Court held in the favour of Microsoft Corporation and granted them compensation of Rs 23.62 lacs against M/s Crompton Computers Private Ltd and its directors for illegally selling pirated Microsoft software in the computer machines which was assembled by the defendants.Further, issues of deep linking and Surface linking also come under infringement. In Playboy Enterprise, Inc V. Frerna, the defendant uploaded the copyrighted pictures of the plaintiff to BBS and the subscribers could access these pictures and download to their home computers. The Court held that plaintiffs right to distribute copies to the public was violated by Defendant Frena. Exclusive rights in copyrighted worksgrants PEI the exclusive rights to sell, give away, rent or lend any material embodiment of his work.  Similarly, in Reliance Pictures v. ‘John Doe’s I.A. (Bodyguard” Movie Case), the Delhi High Court held that defendants and other unnamed and undisclosed persons, are restrained from communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading, or exhibiting, or playing, and/or defraying the movie ‘Bodyguard’ in any manner without a proper license from the plaintiff or in any other manner which would violate/infringe the plaintiffs copyright in the said cinematograph film ‘Bodyguard’ through different mediums like CD, DVD, Blue-ray disc, VCD, Cable TV, DTH, Internet services, MMS, Tapes, Conditional Access System or in any other like manner. Plaintiff is permitted to publish the ‘John Doe’ injunction order passed today in the local newspapers.”

Deep Linking is a concept in which a particular website is linked with another website, whereas the Surface linking pertains to transferring one person from one website to the homepage of the linked site. In 2006, in the case of Naukri.com v. Bixee.com, the plaintiff Naukri.com, a leading job portal in India earned high revenues by providing its customers with an extensive database containing information and details of numerous jobs available in India. Bixee.com, without the authorization of Naukri.com permitted users to view these jobs directly on its website by completely bypassing the Home Page of Naukri.com’s website and which resulted in significant financial losses to Naukri.com. The Indian Court restrained Bixee.com from deep-linking, copying, downloading and reproducing contents from Naukri.com’s website on the basis of copyright infringement.

In A&M Records v. Napster (Ninth Circuit), Napster’s “MusicShare” software allowed internet users to search for MP3 music files stored on each others computers and exchange the files directly with one another. The software maintained a dynamic directory of the files available from users currently logged on to the system.  Each time a user logged in, the software would add that user’s IP address and list available files to the directory. A logged-on user could then search the directory for desired files and download it. The Court held that since Napster was aware the specific infringing files being transmitted through its software and therefore it could be held for contributory liability.
  The Calcutta High Court passed an ex-parte injunction restricting a number of Internet Service Providers (ISPs) from providing access to www.songs.pk, a website which has gained notoriety for providing the latest Bollywood music for free downloading to all users. The lawsuit before the Calcutta High Court has been filed by the Phonographic Performance Ltd. (PPL), Indian Music Industry (IMI) and Sagarika Music Pvt. Ltd. The defendants named in the suit are various ISPs such as Dishnet Wireless Ltd, Reliance Wimax Ltd, Hathway Cable & Datacom Pvt Ltd, Hughes Communications Ltd India, Tata Teleservices (Maharashtra) Ltd, Reliance Communications Infrastructure Ltd, Wipro Ltd, Sify Technologies Ltd, Bharti Airtel Ltd, Vodafone India Ltd, and BG Broadband India Pvt Ltd. 

India grants intermediaries a conditional safe harbour under the IT Act and the Information Technology (Intermediaries Guidelines) Rules 2011. Section 79 of the IT Act provides that an intermediary is not liable for any third-party content hosted/made available through such intermediary when: (1) the function of the intermediary is limited to providing access to the system; or (2) the intermediary does not initiate, select the receiver of or select/modify the information contained in a transmission; and (3) the intermediary observes due diligence and abides by other guidelines prescribed by the Government. The 2011 Intermediaries Guidelines provides a diligence framework to be followed by intermediaries in order to avail of the exemption under Section 79. Various procedures have been prescribed which need to be observed by an intermediary, such as (i) the need to inform the users of the computer resource not to transmit any information  that among other things is harmful, obscene or defamatory; (ii) the requirement to “act within 36 hours” of receiving knowledge of the transmission of any prohibited information; and (iii) the requirement  to disable information that is contradictory to the Intermediaries Guidelines.

In the case of Super Cassetes Industries Ltd. vs Myspace Inc. & Another, The case of Super Cassettes Industries Ltd. v. Myspace Inc. considered a landmark example of the application of copyright law to hold an intermediary liable for infringement. In this case, the Court found Myspace guilty of primary copyright infringement for allowing the viewing and sharing of images and music over which Super Cassettes claimed ownership.Though Myspace argued that they are an intermediary within the meaning of the IT Act and are thus exempted from liability for third-party activities on the website, the court did not agree with this argument on various grounds, finding that Section 79 of the IT Act (which provides safe harbours) has to  be read in conjunction with Section 81 of the IT Act which gives precedence to the Indian Copyright Act.

Fair Dealing is a well-established defence for copyright infringement and the provisionsare covered under Section 52 of the Copyright Act 1957. It provides an exhaustive list of acts which does not amount to copyright infringements. Fair dealing with any work for the purposes of private or personal use, including research, criticism, review of the work, reporting of current affairs or events including public lecture will not amount to infringement of work.

FUTURE SCOPE

Determiningthe liability under copyright infringements especially in this changing nature of the Internet is difficult. The jurisdictional issues, particularly those relating to online violations of copyright, are not easy to handle. The legal system of each nation reacts differently to these violations. Countries like US is well established in these areas of law.Indianeeds to pick up the pace and safeguard the interests and rights of the authors.

-Raksha Singhal