Piracy of Copyright

INTRODUCTION

Prime Minister of India is to Battle Video Piracy in the U.S. Trade losses due to piracy in various sectors in India till 1998 was to the tune of 311.8 million U.S. dollars (1371.92 crore rupees). India has to take necessary action to free its own huge copyright industry and that of the U.S. from piracy. Cable piracy is the most significant one. Unauthorised cable transmissions of films made by companies affiliated to MPA & the American Film Marketing Association have severely undermined the video & theatrical markets. Copyright Act has to be amended to deal with the menace of piracy. These were the impressions of the Prime Minister of India on the eve of his visit to the U.S. few days ago. This indicates the magnitude of the problem of piracy of copyright that is faced by our country.

 

Copyright is a form of intellectual property right, protecting original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software and works of architecture. Copyright according to Section 14 of the Indian Copyright Act, 1957 means, the exclusive right to do or authorize others to do certain acts in relation to 1.literary, dramatic, musical and artistic works. 2.Cinematograph films. 3.sound recordings. According to sec 13 of the Act, copyright shall subsist throughout India only in the above classes of work. Thus, copyright is the right to copy or reproduce the work in which copyright subsists, basically.  A copyright provides its holder the right to restrict unauthorized copying and reproduction of an original expression. Reddy, J. has made a celebrated statement about owning of the copyright in Gramophone Co. v. Birender Bahadur Panday:  “An artistic, literary or musical work is the brainchild of the author, the fruit of his labour and so, considered to be his property. So highly is it prized by all civilised nations that is thought worthy of protection by national laws and international conventions.”

In ancient Roman Law, in works of genius & invention, as in painting on another man’s canvas, the canvas is given to the painter, but not if it is only mechanical writing. It is the creator of the work who is entitled to have it. Original literary compositions cannot be published without the consent of the author and make profit. In ancient days creative writers, musicians and artists wrote, composed or made their works for fame and recognition rather than to earn a living. There is a sea change in this attitude in the modern times. People create works of this type with the intention of commercial application. These works, which were determining factors of personal status and scholarship during the earlier times, have become the economic assets of the creators. As ------------------------------------------------------------------------------------------------------------

* A paper presented at the Two-day National Workshop on “Intellectual Property Rights, Legal Implications & Awareness”  held on August 27 & 28, 2005 at G. K. Law College, Hubli.

These works have become economically important their misuse has also increased.  This has led to large-scale piracy of copyrighted works. Developments in the area of information technology have added new dimension to the large-scale piracy that has been going on unabated. Conventions at the international level and legislations at the national level have been made to regulate the piracy of copyright. Difficulty in identification of the piracy is coming in the way of complete elimination of copyright piracy.

Meaning of copyright

The word copyright is derived from the words “Copy of words” in the year 1586. The term ‘Copy” alone dates back to as early as 1485 and is used to connote a manuscript or other matter prepared for printing. According to the Oxford English Dictionary copyright is the exclusive right given by law for a certain term of years to an author, composer, etc. (or his assignee) to print publish and sell copies of his original work. A copyrighted work must fall into one of the following categories to obtain protection and possession of exclusive right: 1.Literary works; 2.Musical works; 3.Dramatic works; 4.Artistic works; 5. Cinematograph films and 6. Sound recordings.

Objects

The main objective of copyright is to encourage authors, composers and artists to create original works by rewarding them with the exclusive right for limited period to reproduce the work for the benefit of the public. It is a negative right to prevent others from copying or reproducing the work. Long period of copyright encourages authors and artists to create works of literature, music and art.

General Principles

A tenet of Eight Commandments “ Though shall not steel” is the general principle on which the copyright is based. Article 27 of Universal Declaration of Human Rights reiterates this principle, 1.Every one has the right freely to participate in the cultural life of the community to enjoy the arts and share in scientific advancement and its benefits. 2.Every one has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. This principle is the basis of all international conventions relating to copyright.

Copyright is a statutory right, not a common law right. Registration is optional. It springs into life immediately on creation of the work. No copyright is available in mere ideas.  It is a negative right of preventing copying of material. It is a multiple right. Neighbouring rights of the copyright are the right of public performance, the recording right and the broadcasting right. Copyrighted work is the product of labour, skill and capital of a person. Copyright is different from patent.

Statutory Definition of Copyright (S.13)

  

Copyright means the exclusive right to do or authorise others to do certain acts in relation to: (1) Original literary, dramatic or musical work not being a computer programme, (2) Computer programme, (3) Artistic work, (4) Cinematograph film, and (5) Sound recording.

PIRACY OF COPYRIGHT

The rationale behind providing protection against infringement of copyright is that no one should be allowed to appropriate the fruits of another’s labour whether it is tangible or intangible. Infringement means the interference with, or violation of the right of copyright of another; it takes place when a person other than the owner or author does something, which is the exclusive right of the owner or author. Infringing copy means reproduction without a license by the owner of a literary, dramatic, musical or artistic work, copy made of a cinematograph film, recording of sound recording, or a cinematograph of such film of such programs or performance in relation of which broadcasts, reproduction right or performer’s right subsists. Infringement can be divided into primary infringement and secondary infringement. This type of infringement of copyright is popularly known as piracy.

Under Section 51, copyright in a work is deemed to be infringed in the following situations: a) When any person without a licence from the owner of the copyright, or the Registrar of Copyright, or in contravention of the conditions of a licence granted or any conditions imposed by a competent authority under the Act: i) does anything, the exclusive right to do which is conferred upon the owner of the copyright, or ii) 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 has no reasonable ground for believing that such communication to the public would be an infringement of copyright, or b) When any person, i)  Makes for sale or hire, or sells or lets for hire or by way of trade displays or offers for sale or hire any infringing copies of the work, or ii) Distributes, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, any infringing copies of the work, or iii) Exhibits in public by way of trade any infringing copies of the work, or iv) Imports into India any infringing copies of the work except one copy of any work, for the private and domestic use of the importer.

ESSENTIALS OF INFRINGEMENT OF COPYRIGHT

Where a person without the license granted by the owner of the copyright or by the registrar of copyright or in contravention of the grant by the copyright-owner, uses the exclusive right of the copyright owner, causes primary infringement. Where the work is communicated to the public by such person, it constitutes secondary infringement. This could be by way of sale or hire or letting for hire or distributing for the purpose of trade that effect the copyright owner prejudicially. Even if it is imported it constitutes secondary infringement.

In order to constitute primary infringements a substantial or material part of the work must have been copied. There should be a degree of resemblance and substantial resemblance is sufficient and exact resemblance is not necessary. Commonness of ideas does not mean copying if the expression is different. The test is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent works appears to be a copy of the other. Similarity of the expression on the fundamental and substantial aspects and not the similarity of idea so as the later work comes so near the original as to suggest original to the mind of every person seeing it violates the copyright. If an author brings out an independent work that is substantially similar to another work, even then there is no infringement. The Court usually uses the “lay observer” test. The Court tests on the visual appearance of the object and drawing, design or artistic work in question. If a lay observer does not get confused then it is said that there is no infringement.

There are two elements present in reproduction. First, the infringing work should sufficiently resemble the copyright work and second should be produced by the use of the copyright work. The first element requires that there is sufficient degree of objective similarity between the two works.

In the case of computer programmes regard is to the function of the programme in determining the resemblance. Physical appearance is immaterial. The same performance of identical function may constitute the resemblance between the two computer programmes. The form of reproduction is irrelevant and the outward appearance of the copy to the original does not have any effect on the establishment of such reproduction.

Where the absolute originality is necessary and where mental labour is present to make the subsequent work the Court depends on colourable imitation.

In cases where infringement of copyright has to be tested on the visual appearance of the drawing and the object in question, the purpose, functional utility, efficacy of different parts and components of the objects or material of which they may be made are taken into consideration. The Delhi High Court accepted that engineering drawings too are adopted for making three-dimensional articles. This decision gave an excellent way of protecting works until patent protection is taken for drawings.

Books on legal subjects are considered on different footing from the other general books. Enlargement of legal books fetch market value and such enlargement are inclusive of up-to-date case law. Hence enlargement would not constitute infringement.

Factors considered in determining infringement

Piracy of copyright takes place in two important ways. One is by way of copying and the other is by way of substantial taking. In case of copying there should be a causal connection between the two works. There can be subconscious copying as well as indirect copying. In the case of substantial taking it is to be decided by looking into the factors of unaltered copying, extent of defendants’ alteration, character of plaintiffs’ & defendants’ works, nature of plaintiffs’ efforts, extent of plaintiffs’ efforts, manner in which the defendant has taken advantage of plaintiffs’ work, extent of interference with plaintiff’s exploitation by defendant’s acts and reproduction by the original author.

In R.C.Anand v. Deluxe Films (1978), Fazal Ali, J. has laid down the following general propositions:

1.There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts, and violation of copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 2.Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. Whether this is fundamental and substantial is to be judged. 3.Whether the reader gets the impression that the second work is the copy of the original. 4.Theme is same but presented and treated differently. 5.Apart from similarities, there are material and broad dissimilarities. 6.Proof by cogent and clear evidence as it is a piracy. 7.If it is violation of a stage play by a filmmaker it is more difficult to prove piracy.

Matters to be taken into account in determining substantial copying are four as laid down in Brooke Bond v. Balaji [1990] IPLR 266:

1.The volume of the material taken, bearing in mind that quality is more important than quantity.

2.How much of such material is the subject matter of copyright & how much is not.

3.Whether there has been an animus furandi on the part of the defendant, equivalent to an intention on the part of the defendant to take for the purpose of saving himself labour.

4.The extent to which the plaintiff and defendant’s books are competing works.

 

Infringing copy s. 2(m)

 

The term infringing copy is defined in section 2 (m) as under: 1.In relation to literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the from of a cinematograph film; 2.In relation to cinematograph film, a copy of the film made on any medium by any means; 3.In relation to a sound recording any other recording embodying the same sound recording made by any means; 4.In relation to a programme or performance in which such a broadcast reproduction right or a performer’s right subsists under the provisions of this Act, the sound recording or a cinematograph film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act.

Statutory exceptions s. 52

  

Following activities are not treated as piracy of the copyright: 1

1.A fair dealing with literary, dramatic, artistic or musical work, not being computer programme, for the purpose of private use including research, criticism or review, making copies of computer programme for certain purposes, reporting current events in newspapers and magazines or by broadcasting or in a cinematograph film or by means of photograph.

2.Reproduction from judicial proceedings and reports thereof, reproduction exclusively for the use of members of legislature, reproduction (artistic work excluded) in a certified copy supplied in accordance with law.

3.Reading or recitation in public of extracts (literary or dramatic work).

4.Publication in a collection for the use of educational institutions in certain circumstances.

5.Reproduction by teacher or pupil in the course of instructions or in question papers.

6.Performance in the course of the activities of educational institutions in certain circumstances.

7.The making of sound recording under certain circumstances subject to certain conditions.

8.The causing of sound recording to be heard in public by utilising it in an enclosed room or in clubs in certain circumstances.

9.Performance in an amateur club given to a non-paying audience or for religious institutions.

10.Reproduction in news paper and magazine of an article on current economic, political, social or religious topics in certain circumstances.

11.Publication in newspapers or magazines a report of a lecture delivered in public.

12.Making a maximum of three copies for the use of public library.

13.Reproduction of unpublished work kept in a museum or library for the purpose of study or research.

14.Reproduction or publication of any matter published in official Gazette or reports of Government commission or other bodies appointed by Government.

15.Reproduction of any judgment or order of court, tribunal or other judicial authority not prohibited from publication.

16.Production or publication of a translation of Acts of Legislature or rules.

17. Making or publishing of a painting, drawing or photographs of a work of architecture.

18. Making or publishing of a painting, drawings or photographs or engraving of sculpture or other artistic work permanently situate in a public place.

19.Inclusions in a cinematograph film of any artistic work permanently situate in a public place and other artistic work by way of background or incidental to the principal matter represented in the film.

Infringement of Literary, Dramatic & Musical Work

 

Following activities are considered as infringement of copyright in literary, dramatic or musical works:

1.To reproduce the work in any material forms including the storing of it in any medium by electronic means.

2.To issue copies of the work to the public not being copies already in circulation.

3.To perform the work in the public or communicating it to the public.

4.To make any cinematograph film or sound recording in respect of the work.

5.To make any translation of the work.

6.To make any adaptation of the work.

7.To do in relation to a translation or an adaptation of the work, the acts specified in items 1 to 6 above.

8.To permit for profit any place to be used for 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 the copyright.

9.To make infringing copies of the work for sale or for hire or sells or lets for hire or display or offers for sale or hire infringing copies.

10.To distribute infringing copies either for the purpose of trade or to such an extent as to effect prejudicially the owner of the copyright.

11.To exhibit infringing copies by way of trade to the public.

12.To import into India infringing copies. 13.In respect of computer programme which is a form of literary work, (a) To do any of the acts specified above, and (b) To sell or give on hire, or offer for sale or hire, any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions.

Originality

 

A compilation is protected by copyright only to the extent of the material contributed by the author & two elements are to be proved for infringement: 1.ownership of a valid copyright; & 2. Copying of constituent elements of the work, which was original. The originality means that the work must have been independently created & possess minimal degree of creativity [Eastern Book Co. v. Navin J. Desai (2001) PTC 57].

Musical Work: special features

Infringement is not to be determined by a note for note comparison but should be determined by the ear as well as by the eye. As laid down in ZYX Music GMBH v. Chris King [1995] copyright subsists in a disco arrangement of an original song and it is not a piracy. The defendants copied the musical work composed by the plaintiff & sung & recorded in cassettes. Injunction was granted for infringement[Sulamangalam R. Jayalakshmi v. Metamusicals, Chennai (2000) PTC 681].

Infringement of artistic work:

 

Infringement of an artistic work consists of doing or authorising the doing of any of the following acts without the consent or licence of the copyright owner:

1.To reproduce the work in any material form including the depiction in 3 dimension of a 2 dimensional work or in 2 dimensions of a 3 dimensional work;

2.To communicate the work to the public;

3.To issue copies of the work to the public not being copies already in circulation;

4.To include the work in any cinematograph film;

5.To make an adaptation of the work;

6.To do in relation to an adaptation of the work any of the acts specified in relation to the work in 1 to 4. In case of colour combination & get-up the test of actual reproduction of the artistic work is not the criterion, substantial similarity is sufficient. Minor variations are of no consequence [Burroughs Wellcome v. Uni-sole (1999)]. 

As to the biscuits design, eye of the children should be considered for determining the question of eye appeal and similarity [Britannia Industries Ltd.v. Sara Lee Bakery (2001)]. Another test laid down regarding the copying of artistic work is whether the essential features and substance of a plaintiff’s work been adapted [Drayton Controls v. Honeywell Controls (1992)].

 

Industrial drawings

The question whether the actual dimensions and relationship visually depicted on the drawing are sufficiently important to be a substantial part must depend upon their significance to the kind of person to whom the drawing is addressed Billhofer v. Dixon [1990]. Copyright in a drawing whose sole purpose was to serve as the blueprint of the construction of a three dimensional article of purely functional or utilitarian value and with no aesthetic or decorative element was capable of being infringed by copying of the 3 dimensional article British Leyland v. Armstrong [1986]. Making of a knitwear from a pattern contained in a pattern book in which copyright subsisted is an infringement of the copyright in the pattern Roberts v. Candiware [1980].

Work of architecture

Defendants employed an architect to construct a building with certain architecture. 20 years later they employed another architect for extension in which it was copied. Held it is infringement [Mille v. Maufe (1941)].  A shop constructed on the basis of an architect’s plan is reproduction of the plan in a material form & constitutes infringement [Chabot v. Davies (1936)].

Infringement of cinematograph film

Doing or authorising of doing of the following acts without the licence of the owner is piracy: 1.To make a copy of the film, including a photograph of any image forming part thereof; 2.To sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether, such copy has been sold, or given on hire on earlier occasions; 3.To communicate the film to the public; 4.To permit for profit any place to be used for the communication of the work to the public; 5.To make infringing copy of the film for sale or hire; 6.To distribute infringing copies; 7.To exhibit infringing copies to public by way of trade; 8.To import into India any infringing copies of the work.

R.C.Anand v. Deluxe Films [1978] is the best example of the difficulties involved in establishing that a cinematograph film is an infringement of the dramatic work. It was held in Swati Films v. NFDC[1991] that infringement of copyright in cinematograph film is done through telecast without consent or licence. In Zee Telefilm Ltd. v. Asia Producers [2000] interim injunction restraining the telecast of TV serial “India Most Wanted” by the producer was refused, as the agreement was incapable of performance for want of definite or specific details of scripts, concept or story given in the agreement.

 

Infringement of sound recording

Piracy of sound recordings is rampant in our country. Following are the factors that constitute infringement of copyright in sound recording:

1.To make any other sound recording embodying it;

2.To sell or give on hire;

3.To communicate it to the public;

4.To permit the premise for profit;

5.To make infringing copies for sale or hire;

6.To distribute for trade purpose;

7.To exhibit in public by way of trade;

8.To import into India infringing copies.

In CBS Inc. v. Ames Records & Tapes Ltd. [1981], it was held that authorisation of home taping is not a piracy of sound recording.

Remedies

 

Following remedies are available against piracy of copyright:

1.Civil: injunction, damages & accounts, delivery of infringing copies and damages for conversion.

2.Criminal: imprisonment & fine, seizure of infringing copies, & delivery of them to the owner.

3.Administrative: moving the Registrar to ban the import of infringing copies and delivery of the confiscated infringing copies to the owner.

Anton Pillar Order

 

In appropriate cases the court has inherent jurisdiction on an application by the plaintiff made ex parte & in camera to require the defendant to permit the plaintiff to enter his premises and take inspection of relevant documents and articles and copies thereof or remove them for safe custody. The necessity for such order arises where there is a grave danger of relevant documents & infringing articles being removed or destroyed so that the ends of justice will be defeated. Anton Pillar Order may be granted against unlawful interference with the plaintiff’s business [Carlin Music v. Collins (1979)]. Ordinarily the Anton Pillar order will be made only in respect of premises precisely defined [Protector Alarus v. Maxim Alarus (1978)]. The evidence of on the basis of which the ex parte order was obtained should be served with the order [International Electronics v. Weigh Date (1989)]. Allows party executing it to take a list of items, which he reasonably believes infringes third party rights [Twentieth Century Fox v. Tryrare (1991)].

Conditions for making Anton Pillar Order

Following conditions must be satisfied for getting the Anton Pillar Order:

1.There must be an extremely strong prima facie case;

2.The damage, potential or actual, must be very serious for the applicant;

3.There must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter parties can be made.

Passing off relating to copyright works

 

An action for passing off will lie in the following circumstances where the subject-matter involves copyright material:

1.Where a work is passed off as the plaintiff’s work by using a title or appearance which is likely to lead the public to believe that they are purchasing or using a work of the plaintiff’s & injury is likely to accrue to the plaintiff.

2.The subject matter of the work alleged to be passed off must resemble the plaintiff’s.

3.The publication of an earlier edition of work as a subsequent edition.

4.The publication of a work by falsely representing it as the work of a well-known author.

5.Unauthorised use of nom-de-plume under which an author writes articles or works.

6.The false representation of a cinematographic film as the film version of a dramatic work.

Criminal proceedings

Infringement is punishable with imprisonment of 6 months to 3 years & 50 thousand to 2 lakh rupees fine (S. 63). For second & subsequent convictions minimum imprisonment is 1 year & 1 lakh fine (S. 63A). For computer programmes 7 days to 3 years imprisonment & 50 thousand to 2 lakh rupees fine (S.63B). Police is empowered to seize without warrant (S.64). Possession of plates for making infringing copies is punished with 2 years’ imprisonment & fine (S. 65). Infringing copies or plates to be the property of the owner (S.66).

Slander of title

If the publisher publishes the work of one person in the name of another person, both can be sued for slander of title. Action can be maintained if the plaintiff proves:

1.That the statement or representations complained of were false or untrue;

2.That they were made maliciously; &

3.That the plaintiff has suffered special damages thereby.

Injurious falsehood is an attack upon the plaintiff’s goods, & the plaintiff to succeed must plead & prove express malice & falsity & also special damages [A&M Records v. Audio Magnetics (1979)].

 

PIRACY OF COMPUTER RELATED COPYRIGHT WORKS

Piracy of copyright in works such as computer software, database, Internet services, web sites and other information technology related works has become more rampant requiring a special attention. The violation in these areas is easier and very difficult to identify. Hence a careful study of these types of piracies is necessary.

Meaning of Computer Software

It is a set of computer programs, procedures, databases and associated documentation related to the operation of a computer, computer system, or computer network. It also includes programming language and software tools to be used to develop computer software.

Meaning of Computer Program

It is a set of instructions, expressed in words, codes, and schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result.

Kinds of Computer Programs

a) System Program: It enables computer to operate.

b) Application Program: It enables computer users to perform tasks. c) Interoperable Program: It enables application programs to talk to system programs by providing an interface between them.

Copyright Protection

Under Indian Law Copyright Amendment Act 1999 protects computer programs as literary works.  “Computer” includes any electronic or similar device having information processing capabilities S.2 (ffb). “Computer Program” means set of instructions, expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result S.2(ffc). “Literary Work” includes computer programs, tables and compilations including computer databases S.2(o). In Australia, Copyright Act, 1968 protects computer program as “literary works”. It defines computer program as an expression, in any language, code or notation, of a set of instructions. Under Canadian Law, computer software is protected as literary work. However, patents for some types of software are also granted. In U.K., Computer programs are protected under 1988 Act. Protected through the definition of “writing” as it includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium on which, it is recorded.Philippines, under S.172 of I P Code provides for an exhaustive list of literary works including computer programs u/ Clause (n). The Code also protects copyright in manuals & packaging, which accompanies computer software. The U S A Copyright Act 1976 was amended in 1980 definition of Computer program was added.

Rights conferred under S.14

Following rights are provided to the owners of copyright in computer related works under Section 14 of the Indian Copyright Act, 1957:

1.Reproduction right

2.Right to issue copies to public;

3.Public performance or public communication right;

4.Right to make a cinematograph film or sound recording;

5.Translation right;

6.Adaptation right;

7.Right to do in relation to a translation or adaptation of the work of any of the acts specified above;

8.Right to sell or give on hire, or offer for sale or hire any copy of the computer program.

Copying

Reproducing the work in any material form is copying. It can be either substantial or literal.

a) Copying Substantial Part: Each and every pert computer program is an essential element & substantial part of the program [Cantor Fitzgerald International v. Tradition (UK) Ltd, (2000)]. Data division of a COBOL program did not form part of program as it itself did not produce any executable code or speak anything about the program [Total Information Processing System Ltd.v.Daman Ltd. (1992)]. There may be considerable skill involved in setting p of the data division of a COBOL program and hence substantial part of the program [IBCOS Computers Ltd. V. Barclay Mercantile Highland Finance Ltd. (1994)].

b) Literal copying & Non-literal Copying:

Literal Copying: Line by line copying is literal. Argument that similarity is only the result of style in programming is not accepted. IBCOS Computers Case

Non-literal Copying: Copying of an original program by programmer into a new program with similar features of structure, screen displays, formats, and methodology, micro & macro functions but with different programming language can be called non-literal copying. Article 1.2 of European Council Directive on the Legal Protection of Computer Program: “Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright.” The U. S. Law also says the same. S.102(b) of Title 19 USC

U.S.CASES ON NON-LITERAL COPYING

“If there are several ways of achieving the desired purpose, none of which is necessary to the purpose, then the way chosen is the ‘expression’ and not ‘idea’ and protected by copyright” [Whelan Associates, Inc. v. Jaslow Dental Laboratory Inc. (1986)].  “As there are several means, by which the screens could have been structured, sequenced and arranged, the actual way selected by the plaintiff was copyrightable expression” [Broderbund Software v. Unison World (1986)]. “The structure of the plaintiff’s program was ‘idea’ not ‘expression’ because the application itself dictated the structure of the program. The application of the program was to aid in cotton marketing, which could be expressed only in computer programs exhibiting a substantially similar structure” [Plains Cotton Cooperative Association of Lubbock Texas v. Goodpasture Computer Service Inc. 1987]. “A screen display cannot be a copy of part of a program because various programs can produce the same screen display in different ways. Nevertheless the Court did afford protection to the screen display in its own right[Digital Communications Associates v. Softklone Distributing Corpn. 1987]. In Computer Associates Int’l v. Altai Inc. 1992 three-step test for determining copyright in non-literal elements has been laid down:

1. Abstraction: the CP is divided into its various levels of abstraction and discovers various non-literal elements through reverse engineering process. 

2. Filtration: examination of the structural components of the software at each level of abstraction to determine: (a) whether their particular inclusion t that level was ‘idea’ or was dictated by consideration of efficiency. (b) Whether their inclusion was required by factors external to the program itself, such as required data input or output protocol. (c) Whether their structural components were taken from the public domain. If any of the three conditions is satisfied then it is not protectable and need not be considered in the third step. 

3. Comparison: The comparison of both the programs to determine whether the defendants have copied substantial part of the protected expression in the plaintiff’s computer program. In Gates Rubber Co. v. Bando Chemical Industries Ltd. (1994), the three-step test was used to maintain a balance between the protection of owner’s right and technological development. Added one more rule that before beginning the working of the test it must first compare the program as a whole.

India’s emerging digital music industry received a major boost on 28-6-2005 after the USSC passed a landmark ruling in Grokster’s Case declaring that file sharing services, such as Grokster and Morpheus, are an infringement of copyright both in protecting the rights of music artists to be paid for their work, and in protecting online consumers. This decision not only safeguards the future of the legitimate digital music industry, but also protects consumers from privacy infringements and unethical online practices. As consumers turn increasingly to legitimate online music sites, the judgment is an important milestone in the ongoing development of the digital music business, and a reward for industry players that have established ethical business models. This judgment would also help diminish the proliferation of invasive software and covert advertising practices employed by some illegal file-sharing sites into homes. Indian companies like Soundbuzz will have big boost.

U.K. Law

There is no legal provision in UK that restricts ideas being protected. But precedents indicated that there exists no copyright in ideas [Donoghue v. Allied Newspapers Ltd., (1938)]. In Plix Producers Ltd. V. Frank M. Winstone (Merchants) (1986), a distinction is made between two types of ideas: 1. General idea, which is basic and thus is not protected; 2. Idea applied in the exercise of giving expression to the basic concepts, which is protected. In John Richardson Computers Ltd. V. Flanders (1992), the ‘look & feel’ approach was fully observed. Filtration and comparison tests of Altai Casewere applied, but the abstraction test was not applied, as it was not suitable. Visual evidence of the user interface level was relied upon and held that there was a limited infringement based on non-literal elements of the program. The case of IBCOS Computers Ltd v. Barclays Finance Ltd (1994) rejected the idea that the English courts should apply US precedents, but agreed with Richards Case that consideration must not be limited to the actual code of programs in question. In Lotus Development Corpn. V. Paperback Software International (1990), decision of infringement by way of non-literal copying is arrived at as to spreadsheet program, VP-Planner, which was based on Lotus 1-2-3. Judge Keeton applied three elements test. In Brown Bag Software v. Symantec Corpn. (1992), the rationale of the Lotus Case was not applied and it was observed that the court should engage in analytic dissection for the purposes of defining scope of copyright rather than comparing similarities and identifying infringement.

DATABASE

According to Ricketson database is a body of information organised or arranged according to some basic principle of compilation that enables a user to readily retrieve and use particular items. Section 3-A of UK Act defines database as a collection of individual works, data or other materials, which are arranged in a systematic or methodical way, and are individually accessible by electronic or other means. Section 2(o) of Indian Copyright Act says that literary work includes databases. Section 43(b) of IT ACT 2000 makes a provision for remedy against unauthorized use of the data. It says, “If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network, downloads, copies or extracts any data, computer data base or information, including information or data held or stored in any removable storage medium, he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.” In GA Cramp & Sons Ltd. V. Frank Smythson Ltd. (1994), copyright protection was denied to a simple diary because of lack of judgment in the selection and organisation of information. InFiest Publication Inc. v. Rural Telephone Service Co. Inc., (1991), the U.S. Supreme Court has precluded granting copyright protection to the works which are the product of labour only. But ‘yellow pages’ of the directory can have copyright as against ‘white pages’.

Test of originality

Originality does not mean the expression of original or inventive thought. Expression of thoughts must be original. Much depends on the skill, labour, knowledge and the capacity to digest and utilise the raw materials contributed by others in imparting to the product some quality and character which those raw materials did not possess and which differentiates the product from the materials used.

Identity of the owner

Person compiling the information, which is to be entered, is considered the author or creator of the database. There are three ways of forming compilations: 

1.There can be traditional database (paper compilation) & a computer database similar to or same as it is created. 

2.There can be a direct formulation of a computer database from the organs of independent paper works. 

3.The computer database can also be the compilation of computer generated independent works. In Case 1, creator of original database is the owner. In Case 2 & 3, there may be number of copyright owners of the independent paper works or independent computer works.

Database Rights

The principle of ‘sweat of the brow’ has become controversial in the field of database. The US Supreme Court has rejected this test in Fiest’s Case. EC Database Directive has designed a right to protect the investment in obtaining, verifying or presenting the content of the database called the ‘database right’. It is a right given to the maker of a database, for a limited period, to prevent or reutilise it. Database right & copyright can subsist together. Substantiality refers to both quality and quantity or the combination of both, not just quality as in copyright. This Directive is implemented byUK by Copyright and Databases Regulation 1997 (Part III, Regn.13): “Any property right (database right) subsists in a database if there has been substantial investment in obtaining, verifying or presenting the content of the database. Any person who without the consent of the owner of the right extracts or reutilises all or a substantial part of the content of the database, infringes the database right of the owner.”

Database Structure

It refers to the design of the database in terms of the fields allocated for storing various types of information. Such field allocation and division of the record specification in a database may require considerable degree of skill and intellect and thus need copyright protection. But in Total Information processing System Ltd. V. Daman Ltd. data division of a COBOL program was held to be not forming a substantial part of the program as it itself did not produce any executable code or speak anything about the program. However, many programmers consider data division an important and essential part of the program. In IBCOS Case it was held that there may be considerable skill involved in setting up the data division of a COBOL program and it could therefore be considered a substantial part of the program as a whole. Recital 15 of European Directive states that copyright protection should cover the structure of databases; but it should be an intellectual creation.

INTERNET

All exclusive rights come into play in a networked environment in the process of uploading of content, transmission, access and use of content. Difficulty arises when these rights are violated during such process. Following aspects are to be considered: 1.Right of reproduction; 2.Caching; 3.Right of distribution on the Internet; 4.Public Performance & Public Display on the Internet; 5.Adaptation on the Internet

1. Right of reproduction

There is no difficulty in the application of test of substantial similarity on Internet. In Altari Games Corporation v. Nintendo of America Inc. it was held that even the works that warrant limited copyright protection, verbatim copying is an infringement.

2. Caching-a reproduction or not?

Caching is an activity in which a copy of material from an original source is stored for later use; when the same material is requested again the person need not go back to the original source.

a) Local Caching: Storing visited web pages on RAM or hard disk and retrieving by clicking ‘Back Key’ instead of going to website again.

b) Proxy Caching: It generally takes place at the server level. MAI System Corp. v. Peak Computers Inc. (1993) lays down the following principle: “loading of copyrighted computer software from a storage medium into the memory of the computer causes a copy to be made.” This judgment has created considerable controversy. Religious Technology v. Netcom is another case in which it was held thattemporary copying while browsing is the function equivalent of reading & hence does not enter the scope of copyright laws.

3. Right of Distribution on the Internet

The moment the work is exhibited on the Internet, the distribution right is said to be in effect.There is a thin line between distribution & display. Infringement of copyright is done if the distribution right is taken away from the owner in the following ways:

a) The copyrighted work is distributed to various net users through electronic mail.

b) The copyrighted work is distributed to the public by taking printouts of the work and then physically distributing it.

c) The copyrighted work is distributed when the work is displayed on the Internet on web pages.

The last one is also controversial. There is no much case law in this area and the law is also not fully developed. In Hotaling v. Church it was noted that to show distribution, it is not necessary to prove that others actually copied or used the work. Knowingly making it available to the public is in itself enough. In Sega Enterprises v. Maphia it was held that encouraging the subscriber to upload Sega Games to his BBS, which he would then allow his subscribers to download through Internet is infringement.

 

4. Public Performance & public Display on the Internet

Piracy of copyright in terms of public performance is rare; where as display on the Internet is an issue that often arises. Display on the Internet is done if transmission or communication of the work to a place specified is done by means of any device or process, whether the members of the public are capable of receiving the performance or display at the same or different places or times. In Playboy Enterprises, Inc. v. Frena (1993) it has been ruled that making the photographs available on BBS was public display, even though the display was limited to subscribers, and subscribers viewed the photographs only upon down loading form the BBS on demand. In Marobie-FL Inc.v. National Association of Fire Equipment Distributors (1997) it was held very clearly that placement of files containing clip art on the web page constituted a direct violation of both the Plaintiff’s distribution right and the public display right.

5. Adaptation on the Internet

There is a difficulty in protection of adaptation right on the Internet due to vastness and depth of the material available on the Internet.  In Midwat Mfg. Co. v. Artic International, the defendant had intensified its computer work to accelerate the actions of the plaintiff’s video game. The Court ruled that the defendant had adapted the work of the plaintiff and that there was a copyright infringement. In Lewis Galoob Toys v. Nintendo of America, the Court held that there was no work developed by the defendants and a mere enhancement of the original work to produce better results did not give rise to copyright violation. Whether there is a piracy of copyright or not in respect of adaptation on the Internet depends on facts and circumstances of each work.

Internet Sasser worm Case: Sven Jaschan, a German teenager had struck on May 1, 2004 with Sasser worm and in less than a week hit thousands of companies and as many as 18 million computers worldwide, forcing some businesses to shut temporarily in order to debug their systems. Posts affected were as far flung as the European Commission in BrusselsTaiwan’s postal service and Australian rail traffic controllers. US airline Delta was forced to cancel several flights and Finland’s third-largest bank shut its 130 branch offices in a preventive move to keep the worm from infecting its computers. Jaschan is facing trial for sabotage and data manipulation and disruption of public administration. He was just 17 years old when he launched the worm!

Liability for Internet Piracy

Following persons will be liable for infringement of copyright in Internet activities: 1.Users, 2.Website authors, and 3.Service providers. Service providers are further divided in to three categories. These are:

a) Internet Service Providers,

b) Online Service Providers and

c) Bulletin Service Providers.

There is a direct liability when a person does any of the acts, which fall within the exclusive rights of the owner as it amounts to direct infringement of the owner’s copyright. In a case relating to Internet Service Provider titled Religious Technology v. Netcom, the Court refused to hold an ISP directly liable for the automatic pass-through allegedly infringing the message posted to Usenet by a subscriber. In Sega Enterprises v. Maphia, the Court refused to hold the operator of BBS directly liable for uploading & downloading by a subscriber of unauthorised copies of video games of Sega through the BBS. Thus, unless a person has participated in the infringing act, he cannot be made liable for direct infringement.

Contributory Liability

A contributory liability of a person arises if he: 1.Has the knowledge of, or has reason to know, the infringing activity, and 2.Induces or causes or materially contributes to the infringing activity of another. Thus, liability of the service provider comes into account as soon as the third party commits an act of direct infringement. But, there must be the existence of knowledge about the content to make him responsible for the offence.

Vicarious Liability

A third party may be liable for the infringing act of another if such third party: 1.Has the right & ability to control the infringing act of another; and 2.Receive a direct financial benefit from the infringement. In Netcom Case, the court held the third defendant Netcom is not liable for the acts of the other defendants, Thomas Klemesrud and Erlich. In Cubby v. Compu Serve, it is held that under the principle of agency, a principal may be held vicariously liable for the acts of an agent if the latter acts in accordance with the formers control. As there is no such relationship in this case the question of liability does not arise.

Indian scenario

S.55 of the Indian Copyright Act, 1957 provides for civil remedies for infringement of copyright in terms of injunction, damages, accounts and such other remedies. S.63 deals with offence of infringement. For an infringement of copyright a person is liable for six months minimum imprisonment & fifty thousand to two lakh rupees fine. S.53-B says that knowing use of infringing copy of computer program to be an offence. Any person who knowingly makes use on a computer of an infringing copy of a computer program shall be punishable with imprisonment for a term of 7 days to 3 years & fifty thousand to two lakh rupees fine.

Defenses

Following defenses are available against copyright infringement:

1.De Minimis: Using the work for a short span of time or in the least extensive way as not to cause any harm to the copyright holder. InShetland Times v. Dr Jonathan Wills it was held that copying of headlines by defendant was held to be infringement.

2.Ignorance: Ignorance of law is no excuse, but helps in reducing the quantum of punishment.

3.Fair Dealing: Making a hard copy of the web page for personal use.

CONCLUSION

Copyright piracy is a big menace in the modern world. It has become uncontrollable after the information technology revolution. Though law has been made at national and international levels to combat the problem of copyright piracy, the problem is on the increase. Stricter law is necessary to control copyright piracy. One of the ways of controlling it is to make the registration of copyright compulsory, so that it becomes very easy for the enforcing agencies to identify the owner of the copyright. Further, every service providing in respect of the copyrighted works which amount to interference with the owner’s rights should be identified and enlisted. A provision should be made for a stringent requirement of permission in terms of license, assignment or other such rights. There should be a Registry carrying all the information regarding the registered copyrights and the licenses and other rights obtained on such copyrights by the service agencies. It is through such stringent measures that the piracy of copyright can be brought under control.

Dr. J. S. Patil

Professor & Dean

Department of Studies in Law

Gulbarga University, Gulbarga

 

Published in Intellectual Property Rights
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