IT Act (2000): Piracy, Copyright, Copyleft, Open Scouce, Digital Archieves

IT Act 2000
The information technology act 2000 was passed on June 9, 2000. The act is intended to perform
the following functions.
a. To provide recognition for legal commerce: Legal commerce refers to transaction carried out
by electronic means. The transaction and data related to the transactions are communicated
electronically.
To facilitate electronic filling of document with government agencies: the act recognized that
individuals would increasingly prefer to file document with the government electronically, rather
that stand in long queue to do so manually. Electronic filling of document offers several
advantages. People no longer have to wait in long queue, which are a waste of time and therefore,
a waste of productivity. Also, documents filed electronically lodge instantly with the government,
avoiding the time log involved in physically sending the documents from one department to
another or from one state to centre or vice versa.
b. To amend and augment existing laws: The information technology act ,2000 recognizes that
certain laws are out of date and need to be amended and augmented to deal with current realities.
In the light of this, the act seeks to amend the Indian Pinal Code (IPC), the Indian Evidence Act,
1891 and the Reserve Bank of India Act, 1934.
Cybercrimes in India are rapidly evolving from a simple e-mail crime to more serious crimes like
hacking and source code theft. It is a known fact that given the unrestricted number of free Web
sites, the Internet is unquestionably open to exploitation. Further, cases of spam, hacking, cyber
stalking and email fraud are rampant and, although cybercrimes cells have been set up in major
cities, the problem is that most cases remain unreported due to a lack of awareness. Followings are
some drawback which is needed to improve laws and ethics:
1. Reliance on terrestrial laws is an untested approach. Despite the progress being made in many
countries, most countries still rely on standard terrestrial law to prosecute cybercrimes. The
majority of countries are relying on out-dated statutes that predate the birth of cyberspace and have
not yet been tested in court.
2. Weak penalties limit deterrence. The weak penalties in most updated criminal statutes provide
limited deterrence for crimes that can have largescale economic and social effects.
3. Self-protection remains the first line of defense. The general weakness of statutes increases the
importance of private sector efforts to develop and adopt strong and efficient technical solutions
and management practices for information security.
4. A global patchwork of laws creates little certainty. Little consensus exists among countries
regarding exactly which crimes need to be legislated against. Figure 2 illustrates the kinds of gaps
that remain, even in the 19 countries that have already taken steps to address cyber crimes. In the
networked world, no island is an island. Unless crimes are defined in a similar manner across
jurisdictions, coordinated efforts by law enforcement officials to combat cyber crime will be
complicated.

A model approach is needed. Most countries, particularly those in the developing world, are
seeking a model to follow. These countries recognize the importance of outlawing malicious
computerrelated acts in a timely manner in order to promote a secure environment for ecommerce.
But few have the legal and technical resources necessary to address the complexities of adapting
terrestrial criminal statutes to cyberspace. A coordinated, public-private partnership to produce a
model approach can help eliminate the potential danger from the inadvertent creation of cyber
crime havens. The weak state of global legal protections against cyber crime suggests three kinds
of action.

1. Firms should secure their networked information. Laws to enforce property rights work only
when property owners take reasonable steps to protect their property in the first place. As one
observer has noted, if homeowners failed to buy locks for their front doors, should towns solve the
problem by passing more laws or hiring more police? Even where laws are adequate, firms
dependent on the network must make their own information and systems secure. And where
enforceable laws are months or years away, as in most countries, this responsibility is even more
significant.

2. Governments should assure that their laws apply to cyber crimes. National governments remain
the dominant authority for regulating criminal behavior in most places in the world. One nation
already has struggled from, and ultimately improved, its legal authority after a confrontation with
the unique challenges presented by cyber crime. It is crucial that other nations profit from this
lesson, and examine their current laws to discern whether they are composed in a technologically
neutral manner that would not exclude the prosecution of cyber criminals. In many cases, nations
will find that current laws ought to be updated. Enactment of enforceable computer crime laws
that also respect the rights of individuals are an essential next step in the battle against this
emerging threat

3. Firms, governments, and civil society should work cooperatively to strengthen legal
frameworks for cyber security. To be prosecuted across a border, an act must be a crime in each
jurisdiction. Thus, while local legal traditions must be respected, nations must define cyber crimes
in a similar manner. An important effort to craft a model approach is underway in the Council of
 Europe, comprising 41 countries. The Council is crafting an international Convention on Cyber
Crime. The Convention addresses illegal access, illegal interception, data interference, system
interference, computer-related forgery, computer-related fraud, and the aiding and abetting of
these crimes. It also addresses investigational matters related to jurisdiction, extradition, the
interception of communications, and the production and preservation of data.
4. Finally, it promotes cooperation among law enforcement officials across national borders. Late
in its process, the Council began to consider the views of affected industry and civil society. This
process is making the Council’s product more realistic, practical, efficient, balanced, and
respectful of due process that protects individual rights. At this point, most observers support
provisions to improve law enforcement cooperation across borders. However, industry, through
the World Information Technology and Services Alliance, argues that the requirements on
service providers to monitor communications and to provide assistance to investigators, as
outlined in the Draft Convention, would be unduly burdensome and expensive. Another
provision considered objectionable could criminalize the creation and use of intrusive software,
or hacking programs, which are designed for legitimate security testing purposes. This action
could stifle the advances in technology vital to keep up with evolving cyber threats. Privacy and
human rights advocates object to the Draft Convention’s lack of procedural safeguards and due
process to protect the rights of individuals, and to the possibility that the ensuing national laws
would effectively place restrictions on privacy, anonymity, and encryption.

5. The Council plans to release a final draft of the Convention in December 2000. In 2001, a
political process involving national governments will determine the scope and coverage of the
final Convention. Because of cyber crime’s international potential, all countries, and all
companies, are affected. Interested parties, including national governments from outside Europe,
and businesses and non-governmental organizations from around the world, should participate
vigorously in a consensus process to develop measures that support effective international
lawmen for cement and foster continued growth and innovation. The IT Act 2000 attempts to
change updated laws and provides ways to deal with cyber crimes. We need such laws so that
people can perform purchase transactions over the net through credit cards without fear of
misuse.
6. The Act offers the much-needed legal framework so that information is not denied legal effect,
validity or enforceability, solely on the ground that it is in the form of electronic records. In view
of the growth in transactions and communications carried out through electronic records, the Act
seeks to empower government departments to accept filing, creating and retention of official
documents in the digital format. The Act has also proposed a legal framework for the
authentication and origin of electronic records / communications through digital signature.
 From the perspective of e-commerce in India, the IT Act 2000 and its provisions contain many
positive aspects. Firstly, the implications of these provisions for the e-businesses would be that
email would now be a valid and legal form of communication in our country that can be duly
produced and approved in a court of law.
 Companies shall now be able to carry out electronic commerce using the legal infrastructure
provided by the Act.
 Digital signatures have been given legal validity and sanction in the Act.
 The Act throws open the doors for the entry of corporate companies in the business of being
Certifying Authorities for issuing Digital Signatures Certificates.
 The Act now allows Government to issue notification on the web thus heralding e-governance.
 The Act enables the companies to file any form, application or any other document with any
office, authority, body or agency owned or controlled by the appropriate Government in electronic
form by means of such electronic form as may be prescribed by the appropriate Government.
 The IT Act also addresses the important issues of security, which are so critical to the success of
electronic transactions. The Act has given a legal definition to the concept of secure digital
signatures that would be required to have been passed through a system of a security procedure,
as stipulated by the Government at a later date. Under the IT Act, 2000, it shall now be possible
for corporate to have a statutory remedy in case if anyone breaks into their computer systems or
network and causes damages or copies data. The remedy provided by the Act is in the form of
monetary damages, not exceeding Rs. 1 crore
Piracy Act
Introduction
In the recent past we saw rampant violation of the copyright policy of the movie ‘Udta Punjab’
when it was distributed via internet before its actual release. The cyber cell of Mumbai Police on
receiving the complaint from the deputy general manager (legal) of the Phantom Films Pvt Ltd.
blocked the pirated version of the movie and arrested a man for illegally uploading the movie on
his site. The movie was apparently uploaded on seven sites before its release. This brings us to the
major issue which has been on a rise that is ‘Online piracy’.

Almost all of us are guilty of downloading a latest movie or any latest episode of say Game of
Thrones from torrent or other similar websites. Are these downloads authorised? Is there any law

COPYRIGHT FIMT 2020 Page 19

which we are infringing? In the following blog post we shall dwell into all these questions and
understand the law relating to such unauthorised downloads.

What constitutes Online piracy?

Online piracy is the term to elucidate the illegal act of duplication of licensed or copyright material
from internet. There are three main piracy context- music, movie and software.
Piracy means unauthorised reproduction, importing or reproduction of the whole or any part of
work protected by copyright. Through advancement of technology and broadband connection
almost in all households the method of piracy has changed from physical reproduction and
distribution to online distribution.

How rampant is online piracy in India?

There was a study conducted by Evisional and Motion Pictures Association (MPA) which
concluded that the online piracy for movie content is very significant in India. According to the
study Indians form the largest group to download Indian copyright content from torrent sites.
Delhi, Mumbai and Bangalore accounted for maximum level of illegal downloading.
In another report by Ernst and Young 2008, Indian film industry lost USD 959 (Rs. 4,411 Crores)
million and 5, 71,896 jobs in that year due to piracy.

Legal measures against online Piracy:-

In India all form of literary and artistic work is protected under the Copyright Act, 1957. The
Indian film industry has strong lobby at both state and union level. The increase in online piracy
has led the government to take strong actions. The recent amendment in the Copyright act is an
example of the various initiatives taken by the government.

Amendment of 2012
In 2012 the Central Government added two digital rights management provision (DRM).
The main objective of this amendment was to curb digital piracy and to facilitate the membership
of India in WIPO Copyright Treaty (WCT) and the WIPO Performers and Phonograms Treaty
(WCTT). These amendments were incorporated in the Copyright Act as section 65A and 65B.
Section 65A
This section protects the technological protection measures (TPM) used by copyright holders to
protect their work from bring pirated. The section says that in case a person circumvents the
copyright of the protected work with the intention of infringing the right of the owner then that
person would be punishable with imprisonment up to 2 years and shall also be liable for fine.
Section 65B
This section makes removal of rights management information without authorisation a criminal
offence. The copyright act formerly used to try for civil liability only. After the inception of this
section, infringing the work without authorisation calls for criminal liability. Any person who
sells, distributes, imports, broadcast or communicate to the public, copies of any work or
performance without authority, knowing that the rights management information has been
removed or altered without authority is punishable under this section. Punishment of maximum
two years is prescribed by the Act this could be with or without fine.

 John Doe Orders

The Indian Judiciary has recently adopted a new concept of ‘John Doe’ Orders. These orders have
far reaching effects in curbing online piracy. The term John Doe order refers to orders where the
identities of defendants are unknown at the time of filing of the petition and the orders identify the
defendants only by way of some description. The producers in the Indian film industry make
extensive use of this form of judicial intervention against online piracy by filing such applications
before the release of new movies.

The movie makers can make use of such orders to block the whole website that is suspected to
provide unauthorised online access. These orders should be granted only after careful scrutiny of
all the circumstances, Indian Judiciary has in the recent past passed these orders at an alarming
rate. These can be an effective tool against online piracy but the judiciary has to maintain a balance
between the right of the copyright holder and the interest of public at large.
Various case studies
Piracy in India is not a pretty new concept. It has been in India for quite a long time and has
clinched in our system with deep roots. Initially piracy in film industry started with unauthorised
DVDs and CDs. The cable operators started showing movies on TV without permission and now
the latest trend is downloading and distributing. The film industry has however always tried their
best to eradicate and protect their rights. Some of the cases are:-

COPYRIGHT FIMT 2020 Page 21

 1. The latest is the arrest of a 25 year old boy who allegedly uploaded the movie ‘Udta Punjab’
in his website for masses to download two days before the release. The cyber cell of
Mumbai Police arrested him.
2. In a similar case the Tamil movie 'EnakkuInnoruPerIrukku' which was uploaded on internet
before its release. Musician-turned-actor G V Prakash Kumar filed a complaint to the
Chennai police for early arrest of the accused.
3. In 2015 after the petition from the makers of Piku, Delhi High Court passed a piracy
restraining orders against websites and cable operators from streaming, broadcasting or
publishing online the film Piku without permission.
4. In 2012, Kerala police arrested almost 1000 people for infringing the copyright of the
movie ‘Bachelor Party’. These people were arrested for illegally uploading and
downloading the film. The action was taken by the cyber cell of the Kerala police after a
complaint was filed by the Thrissur based firm Movie Channel which bought the video CD,
DVD rights.
5. In 2011, for the Bodyguard Movie case, John Doe orders were passed by the Delhi High
Court.
Is torrent illegal?
The answer to this question is a big NO. Torrenting has in the recent past proved to be an effective
tool for peer to peer file sharing. The government only prohibits downloading or uploading any
unauthorised material or any file which is infringing the copyright of the work. Otherwise,
torrenting is always encouraged by many cyber experts.
Conclusion
Piracy is a big problem in India. The film industry suffers from a substantial amount of online
piracy. The inclusion of DRM provision and the rampant John Doe orders have been effective to
an extent. These provisions provide a digital platform to curb online piracy. But these provisions
suffer territorial limitation. Many servers are based abroad and the failure of industry to provide
legitimate media content abroad acts as another major motivation for downloading contents
through illegitimate means. The industry should adopt new method and make use of technological
advancement to provide access to all consumers of the Indian movies through inexpensive, safe
and legitimate routes.

COPYRIGHT FIMT 2020 Page 22

Copyright act 1957

Introduction

Creativity being the keystone of progress, no civilized society can afford to ignore the basic
requirement of encouraging the same. Economic and social development of a society is dependent
on creativity. In the light of this, the Indian Copyright Act, 1957 has been enacted which came into
effect from January, 1958 and was modified five times i.e., in 1983, 1984, 1992, 1994 and 1999.
The Indian Copyright Act, 1957 as amended from time to time and the Indian Copyright Rules,
1958 (Rules), governs the system of copyrights in India. Copyright is a right given by the law to
creators of literary, dramatic, musical and artistic works and producers of cinematographic films
and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction,
communication to the public, adaptation and translation of the work.

The provisions of the The Indian Copyright Act, 1957and the Copyright Rules, 1958 as amended
from time to time and as applicable as on today are explained hereunder. Classes of work for which
Copyright protection is applicable

Copyright subsists throughout India in the following classes of works:

 Original literary,
 dramatic,
 musical work (consists of music and also graphic notation of such works but excludes any
words or action intended to be sung, spoken or performed with music)
 artistic works (painting, sculpture, drawing, engraving, photograph, architecture or any
other work of artistic craftsmanship (whether or not any such work poses artistic work)
 Cinematograph films (work of visual recording on any medium produced through a process
from which a moving image may be produced by any means and includes a sound
recording accompanying such visual recording); and
 Sound recordings (recording of sounds from which sounds may be produced regardless of
the medium on which such recording is made or the method by which the sounds are
produced).

Protection to Authors

COPYRIGHT FIMT 2020 Page 23

Copyright protects the rights of authors, i.e., creators of intellectual property in the form of
literary, musical, dramatic and artistic works and cinematograph films and sound recordings.

The following rights are protected:

 reproduce the work
 issue copies of the work to the public
 perform the work in public
 communicate the work to the public.
 make cinematograph film or sound recording in respect of the work
 make any translation of the work
 make any adaptation of the work ( conversion of dramatic work into non dramatic work,
literary work into dramatic work, re-arrangement of literary or dramatic work, depiction in
comic form or through pictures of a literary or dramatic work, transcription of musical
work or any act involving rearrangement or alteration of an existing work and the making
of a cinematograph film of literary or dramatic or musical work)

In addition to all the rights applicable to a literary work, owner of the copyright in a computer
programme enjoys the rights to sell or give on hire or offer for sale or hire, regardless of whether
such a copy has been sold or given on hire on earlier occasion.

Owners of copyrights

The following are the owners of the copyrights:

 In musical sound recordings: lyricist, composer, singer, musician and the person or
company who produced the sound recording
 In works by journalists during their employment: in the absence of any agreement to the
contrary, the proprietor
 In works produced for valuable consideration at the instance of another person: in the
absence of any agreement to the contrary, the person at whose instance the work is
produced

Assignment of Copyright

COPYRIGHT FIMT 2020 Page 24

The owner of the copyright in an existing work or the prospective owner of the copyright in a
future work may assign to any person the copyright either wholly or partially and either generally
or subject to limitations and either for the whole term of the copyright or any part thereof. The
assignment mention the rights, duration, the territorial limits of the assignment and
the royalty payable thereon and should be in writing signed by the assignor or by his duly
authorised agent.

If the assignment of Copyright does not contain Then the following provisions prescribed by the
any provision mentioned below Act will prevail

Where the assignee does not exercise the rights Shall lapse after the expiry of the said period
assigned to him within a period of one year from unless otherwise specified in the assignment
the date of assignment

If the period of assignment is not stated it shall be deemed to be five years from the date of
assignment.

If the territorial extent of assignment of the rights it shall be presumed to extend within the whole of
is not specified India.

Term of the protection of Copyright

The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic,
musical and artistic works the 60-year period is counted from the year following the death of the
author. In the case of cinematograph films, sound recordings, photographs, posthumous
publications, anonymous and pseudonymous publications, works of government and works of
international organisations, the 60-year period is counted from the date of publication.

Exceptions to the use Copyright

In order to protect the interests of users, some exemptions have been prescribed in respect of
specific uses of works enjoying copyright. Some of the exemptions are the uses of the work:
 for the purpose of research or private study,
 for criticism or review,
 for reporting current events,
 in connection with judicial proceeding,
  performance by an amateur club or society if the performance is given to a non-paying
audience, and
 the making of sound recordings of literary, dramatic or musical works under certain
conditions.
 for the purpose of education and religious ceremonies

Application for registration of copyright

The procedure for registration is as follows:

 Application for registration is to be made in Form IV as prescribed in the first schedule to

the Rules accompanied by the requisite fees prescribed in the second schedule to the Rules
;
 Separate applications should be made for registration of each work;
 The applications should be signed by the applicant or the advocate in whose favor a
Vakalatnama or Power of Attorney has been executed, and the same has to be annexed to
the application form.

Administration of the Copyright Law

The Copyright Act provides for a quasi-judicial body called the Copyright Board consisting of a
Chairman and two or more, but not exceeding fourteen, other members for adjudicating certain
kinds of copyright cases. The Chairman of the Board is of the level of a judge of a High Court.
The Board has the power to:
 hear appeals against the orders of the Registrar of Copyright;
 hear applications for rectification of entries in the Register of Copyrights;
 adjudicate upon disputes on assignment of copyright;
 grant compulsory licence to publish or republish works (in certain circumstances);
 grant compulsory licence to produce and publish a translation of a literary or dramatic
work in any language after a period of seven years from the first publication of the work;
 hear and decide disputes as to whether a work has been published or about the date of
publication or about the term of copyright of a work in another country;
 fix rates of royalties in respect of sound recordings under the cover-version provision;
and
  fix the resale share right in original copies of a painting, a sculpture or a drawing and of
original manuscripts of a literary or dramatic or musical work.

Rights of the Registrar of Copyrights

The Registrar of Copyrights has the powers of a civil court when trying a suit under the Code of
Civil Procedure in respect of the following matters, namely,
 summoning and enforcing the attendance of any person and examining him on oath;
 requiring the discovery and production of any document;
 receiving evidence on affidavit;
 issuing commissions for the examination of witnesses or documents;
 requisitioning any public record or copy thereof from any court or office;
 any other matters which may be prescribed.

Infringement of Copyright

Copyright in a work is considered as infringed only if a substantial part is made use of

unauthorizedly. What is ‘substantial’ varies from case to case. More often than not, it is a matter
of quality rather than quantity. For example, if a lyricist copy a very catching phrase from another
lyricist’s song, there is likely to be infringement even if that phrase is very short.

The following are some of the commonly known acts involving infringement of copyright:
 Making infringing copies for sale or hire or selling or letting them for hire;
 Permitting any place for the performance of works in public where such performance
constitutes infringement of copyright;
 Distributing infringing copies for the purpose of trade or to such an extent so as to affect
prejudicially the interest of the owner of copyright ;
 Public exhibition of infringing copies by way of trade; and
 Importation of infringing copies into India.

A copyright owner can take legal action against any person who infringes the copyright and is
entitled to remedies by way of injunctions, damages and accounts. Penalty for infringement and
the status of the infringing copies. The minimum punishment for infringement of copyright is
imprisonment for six months with the minimum fine of Rs. 50,000/-. In the case of a second and
subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one
lakh. All infringing copies of any work in which copyright subsists and all plates used or intended
to be used for the production of such infringing copies shall be deemed to be the property of the
owner of the copyright.

Miscellaneous
 If for a profit a person permits anyone to use any place to be used for the communication
of a work to the public, and which constitutes an infringement of the copyright, he will be
deemed to have committed an offence under the Copyright Act, unless he was not aware
and had no reasonable ground to believe that such communication to the public would be
an infringement of copyright.
 Every person who at the time the offence was committed was in charge of, and was
responsible to the company for, the conduct of the business of the company, as well as the
company shall be deemed to be guilty of such offence and shall be liable to be proceeded
against.

The amendments introduced through Copyright (Amendment) Act 2012 can be categorized into:
1. Amendments to rights in artistic works, cinematograph films and sound recordings.
2. WCT and WPPT related amendment to rights
3. Author-friendly amendments on mode of Assignment and Licenses
4. Amendments facilitating Access to Works
5. Strengthening enforcement and protecting against Internet piracy
6. Reform of Copyright Board and other minor amendments
I. Rights in Artistic Works, Cinematographic Films and Sound Recordings
Section 14 relating to the exclusive rights in respect of a work has been amended. The amendments
clarify the rights in artistic works, cinematograph films and sound recordings, by providing that
the right to reproduce an artistic work, to make a copy of a cinematograph film or embodying a
sound recording now includes ‘storing’ of it in any medium by electronic or other means. In the
case of literary, dramatic and musical works, the right to reproduce already includes ‘storing of the
work in any medium by electronic means’. The present amendment in effect only extends this
inclusive language to artistic works, cinematograph films and sound recordings. The right to store
the work is of particular importance in a digital environment due to the special nature of
transmission of digitized works over the internet where transient copies get
created at multiple locations, including over the transmitting network and in the user’s computer.
In a manner of speaking, it can be stated that copyright has been extended to the ‘right of storing’
of works.

It also creates liability for the internet service providers. While adding this right, the Act also
treats as fair use the transient or incidental storage and safe harbour provisions to service
providers. The definition of the Cinematograph Film (Section 2(f)) has also been amended. The
amended definition reads: Cinematograph Film means any work of visual recording and includes
a sound recording accompanying such visual recording and “cinematograph” shall be construed
as including any work produced by any process analogous to cinematography including video
films. The Amendment Act also introduces a definition of ‘visual recording’ (Clause xxa) to mean
‘recording in any medium, by any method including the storing of it by any electronic means, of
moving images or of the representations thereof, from which they can be perceived, reproduced
or communicated by any method.’

The amendments address technical issues like ‘storing’, and therefore address some of the digital
era challenges.
II. WPPT and WCT related Amendment to Rights
Commercial Rental
The obligation under Article 11 of the TRIPS Agreement, Article 7 of WCT and Article 9 of WPPT
is to provide for ‘commercial rental’ rights for computer programmes and cinematograph films.
This right was introduced in section 14 by using the word ‘hire’.
The term ‘hire’ in sections 14(d)&(e) with regard to cinematograph film and sound recording,
respectively, is replaced with the term ‘commercial rental’. The primary reason behind the
replacement is to curtail the possibility of interpreting the term ‘hire’ to include non-commercial
hire and also to keep in sync with the replacement (1999 amendment) of the term ‘hire’ to
‘commercial rental’ with respect to computer programme in section 14(b).
This amendment substitutes the word ‘hire’ with ‘commercial rental’ in sections 14 (b)&(c) but
has deleted the words ‘regardless of whether such copy has been sold or given on hire on earlier
occasions’. This deletion in the case of both cinematograph films and sound recordings brings in
the doctrine of first sale exhaustion to these works. It may be recalled that the doctrine of first sale
exhaustion was applicable only to the literary, dramatic and artistic works before the

COPYRIGHT FIMT 2020 Page 29

amendment. The Amendment Act 2012 has also introduced a definition of the term ‘commercial
rental’ in section 2(fa) with the objective of expressly clarifying that the right is not applicable to
non-commercial activities of giving on ‘hire’ including the activities of libraries and educational
institutions.

Performers’ Rights
The Amendment Act 2012 has introduced affirmative performers’ rights. Subsections 3&4 of the
present section 38 have been omitted and a new section 38A has been inserted in compliance with
Articles from 6 to 10 of WPPT. Section 38A provides for performer’s right as an exclusive right
to do or authorize the doing of any of the acts in respect of the performance without prejudice to
the rights conferred on authors. The proviso to the section enables performers to be entitled for
royalties in case their performances are subjected to commercial use. This is a welcome
development as earlier the performers were not entitled to royalties because they only had a
negative right to prohibit ‘fixation’ of their live performances. The negative right has now been
converted to the positive rights.

Along with the above, the Amendment Act 2012 has also sought to amend the definition of
‘Communication to Public’ (Section 2 (ff)) extending the right to performances. The rights under
this head hitherto limited to authors have been extended to performers by the present amendment.
This is consequential to the grant of new rights to performers. The right of ‘communication to
public’ is essential to protect the work on the internet and such protection hitherto available for
‘works’ now extends to ‘performances’. A new section 38B grants moral rights to performers in
line with Article 5 of WPPT. Moral rights have been extended to performers, considering the
possibility of digital alteration of performances in a digital environment. The ‘explanation’ to the
section clarifies that editors are free to perform their tasks without the fear of legal consequences.
Another significant amendment in line with Article 9 of WCT is regarding the duration of
protection of photographic works. The term of copyright in a photograph has been made at par
with other artistic works, namely, until sixty years after the death of the author.
III. Author friendly Amendments on mode of Assignment and Licenses
Assignment of Rights

COPYRIGHT FIMT 2020 Page 30

Under Section 18(1) a second proviso has been inserted. It provides that no such assignments shall
apply to any mode of exploitation that did not exist or was not known in commercial use when the
assignment was made. This amendment strengthens the position of the author if new modes of
exploitation of the work come to exist. Section 18(1) provides that the owner of a copyright in any
work or prospective owner of a future work may assign the copyright, and the proviso to this sub-
section clarifies that in the case of future work, assignment will come into force only when the
work comes into existence. Another proviso under S. 18(1), inserted through Amendment Act
2012, provides that the author of a literary or musical work incorporated in a cinematograph film
or sound recording shall not assign the right to receive royalties in any form other than as a part of
the film or sound recording. Section 19 relates to the mode of assignment. Sub-section(3)has been
amended to provide that the assignment shall specify the ‘other considerations’ besides royalty, if
any, payable to the Assignor. Therefore, it is not necessary that only monetary compensation by
way of royalty could lead to assignment. A new sub- section(8)has been inserted making the
assignment of copyright void if contrary to the terms and conditions of the earlier assignment to a
copyright society in which the author of the work is a member. This amendment is an attempt to
streamline the business practices. Another amendment, insertion of sub-section(9), by providing
claim to royalties from the utilization of the work used to make a cinematograph or sound
recording irrespective of any assignment of the copyright in the same, is an attempt to rationalize
the business practices prevalent in the film industry.

Section 19A relates to disputes with respect to assignment of copyright. This section provides that
on receipt of a complaint from an aggrieved party, the Copyright Board may hold inquiry and pass
orders as it may deem fit, including an order for the recovery of any royalty payable. The second
proviso is amended to provide that pending disposal of an application for revocation of assignment,
the Copyright Board may pass any order as it deems fit regarding implementation of the terms and
conditions of assignment.
IV. Amendments to Facilitate Access to Works
 Grant of Compulsory Licenses
 Grant of Statutory Licenses
 Administration of Copyright Societies
 Fair Use Provisions
 Access to copyrighted works by the Disabled
 Relinquishment of copyright
Compulsory Licenses
Section 31 deals with compulsory licenses of works withheld from public. The amendment
amplifies the applicability of this section from ‘Indian work’ to ‘any work’. The word
‘complainant’ is also replaced with the words ‘such person or persons who, in the opinion of the
Copyright Board is or are qualified to do so’. In continuum, sub-section (2) is omitted so as to
enable the Copyright Board to grant compulsory license to more than one person.
By virtue of the above amendment, compulsory licenses can be obtained for ‘any work’ withheld
from the public and not just ‘Indian works’ and the license can be granted to such persons as the
Board may decide. Section 31A relates to compulsory licenses in unpublished ‘Indian works’. This
has been amended to allow compulsory licenses to any unpublished work or any work published
or communicated to the public where the work is withheld from the public in India and in cases
where the author is dead or unknown or the owner cannot be traced. Special provisions have been
provided for compulsory licensing of the works for the disabled by inserting Section 31B.
Statutory Licenses
A new Section 31C provides for statutory license to any person desiring to make a cover version
of a sound recording in respect of any literary, dramatic or musical work. The amendment provides
that the person making the sound recording shall give to the owner prior notice of his intention in
the prescribed manner, provide the copies of all covers or labels with which the version is supposed
to be sold, and pay in advance the royalty at the rate fixed by the Copyright Board. Such sound
recordings can be made only after the expiration of 5 years after publication of the original sound
recording. There is a requirement of payment of a minimum royalty for 50,000 copies of the work
during each calendar year. This is not totally a new provision for statutory license for cover version
as it is, but a replacement of Section 52(1)(j) as it stood before the amendment. A new section 31D
providing for statutory license for broadcasters has been brought to facilitate access to the works
for the broadcasting industry. At present the access to copyrighted works was dependent upon
voluntary licensing. The amendment provides that any broadcasting organization desiring to
broadcast a work including sound recording may do so by giving prior notice to the right holders
and pay royalty as fixed by the Copyright Board in advance. The names of the authors and
principal performers shall be announced during the
broadcast. The broadcasting organization shall maintain records of the broadcast, books of account
and render to the owner such records and books of account.
Administration of Copyright Societies
Sections 33, 34 and 35 relate to the registration and functioning of a copyright society. These have
been amended to streamline the functioning of the copyright societies.
All copyright societies will have to register afresh with the registration granted for a period of five
years. Renewal is subject to the continued collective control of the copyright society being shared
with the authors of works in their capacity as owners of copyright or of the right to receive royalty.
There are specific amendments to protect the interests of the authors. In Section 35, the phrase
‘owners of rights’ has been substituted with ‘authors and other owners of right’. The section has
been amended to provide that every copyright society shall have a governing body with such
number of persons elected from among the members of the society consisting of equal number of
authors and owners of work for the purpose of the administration of the society. Section 35(4)
provides that all members of a copyright society shall enjoy equal membership rights and there
shall be no discrimination between authors and owners of rights in the distribution of royalties.

Fair Use Provisions

Section 52 enumerates fair use clauses, acts that will not be infringement of copyright. Certain
amendments have been made to extend these provisions in the general context. The existing clause
(1)(a) has been amended to provide fair dealing with any work, not being a computer programme,
for the purposes of private and personal use. With this amendment, the fair use provision has been
extended to cinematograph and musical works. Fair use in the above lines has been extended by
amendment to bring in the word ‘any work’ to reproduction in the course of judicial proceedings;
reproduction or publication of any work prepared by secretariat of a legislature; in certified copies
supplied as per law. A new clause 52(1)(w) provides that the making of a three dimensional object
from a two dimensional work, such as a technical drawing for industrial application of any purely
functional part of a useful device shall not constitute infringement. This provision should help
reverse engineering of mechanical devices.
A new clause 52(zc) has been introduced to provide that importation of literary or artistic works
such as labels, company logos or promotional or explanatory material that is incidental to
products or goods being imported shall not constitute infringement. This clause supports the
parallel import provision embedded in the Trade Marks Act, 1999.
Clauses (zb) and (zc) provide for fair dealing in the use of disabled persons.
Fair use provisions have been extended to the digital environment. Any transient and incidental
storage of any work through the process of ‘caching’ has been provided exceptions as per the
international practice. Any deliberate storing of such works and unauthorized reproduction and
distribution of such works is an infringement under Section 51 attracting civil and criminal
liability. Exceptions under this section have been extended to education and research purposes, as
works are available in digital formats and in the internet. The scope of these provisions ensures
that introduction of new technology will also be covered under this new section.

An explanation has been inserted to clause (1)(a) of Section 52 to clarify that storing of any work
in any electronic medium for the specified purposes, including the incidental storage of a computer
programme which in itself is not an infringing copy, shall not be an infringement.
A new clause (b) in Section 52 seeks to provide that transient and incidental storage of a work or
performance purely in the technical process of electronic transmission or communication to the
public shall not constitute an infringement of copyright. Similarly, clause (c) provides that transient
and incidental storage of a work or performance for the purposes of providing electronic links,
access or integration, where the right holder has not expressly prohibited such links, access or
integration, shall not constitute infringement.
To facilitate digitization of libraries a new clause (n) has been introduced to enable the storage of
a digital copy of a work if the library possesses a non-digital version of it.
The unauthorized use of copyright work over the internet leads to suspension of the service
provider’s activity.

The new clause (c) of Section 52, while providing for fair use exemption for transient or incidental
storage of works, also provides for the internet service provider’s liability when read with the
additions of rights of storage and definition of infringement. A proviso has been added to this
clause to provide a safe harbour as per international norms to internet service providers, as they are
merely carriers of information provided by others. This is generally referred to as ‘notice and take
down procedure’. If the person responsible for the storage of the copy has received a written
complaint from the owner of copyright in the work, that the transient or incidental

storage is an infringement, such persons responsible for the storage shall refrain from facilitating
such access for a period of twenty-one days or till he receives an order from the competent court
refraining from facilitating access. In case no such order is received before the expiry of such
period of twenty-one days, he may continue to provide the facility of such access.
Special Provision for Access to the Disabled

1. Compulsory License for the Disabled

Section 31B provides for compulsory license in works for the benefit of the disabled. The
Copyright Board, on an application for a CL by any person working for the benefit of persons with
disability on a profit basis or for business shall dispose such application within a period of two
months from the date of receipt of application.
The CL issued must specify the means and format of publication, the period during which the
compulsory license may be exercised and the number of copies that may be issued including the
rate or royalty.

2. Fair Use Rights for the Disabled

The new clause (zb) added to section 52(1) providing for fair use of the work for the benefit of the
disabled, facilitates adaptation, reproduction, issue of copies or communication to the public of
any work in any accessible format, for persons with disability to access works including sharing
with any person with disability for private or personal use, educational purposes or research.
These rights are available to any person or organization working for the benefit of the persons with
disabilities.
Easier relinquishment of copyright Section 21 deals with the right of author to relinquish copyright.
The amendment facilitates relinquishment of copyright by way of public notice. Sub- section 1
now provides relinquishment of copyright either by giving notice to the Registrar of Copyrights or
by way of public notice.

V. Strengthening Enforcement and Protecting against Internet Piracy

Strengthening of Border Measures
Section 53, dealing with importation of infringing copies, has been substituted with a new
section providing detailed border measures to strengthen enforcement of rights by making
provision to control import of infringing copies by the Customs Department, disposal of infringing
copies and presumption of authorship under civil remedies.
Protection of Technological Measures
The new section 65A, introduced for protection of technological protection measures (TPM) used
by a copyright owner to protect his rights on the work, makes circumvention of it a criminal offence
punishable with imprisonment. As a result, any person who circumvents an effective technological
measure applied for the protection of any of the rights, with the intention of infringing such rights,
shall be punishable with imprisonment, which may extend to two years and shall also be liable to
fine. The rationale is to prevent the possibility of high rate infringement (digital piracy) in the
digital media. This amendment also clarifies the problem of circumvention impacting the public
interest on access to work facilitated by the copyright laws. Sub-section (2) permits circumvention
for specified uses.

Digital Rights Management Information

Section 65B has been introduced to provide protection of rights management information, which
has been defined under clause (xa) of section 2. This amendment is intended to prevent the removal
of the rights management information without authority and distributing any work, fixed
performance or phonogram, after removal of rights management information. As a result, any
unauthorized and intentional removal or alteration of any rights management information is a
criminal offence punishable with imprisonment, which may extend to two years and fine. The
rationale of the protection emanates from the practice in the digital world of managing the rights
through online contracts governing the terms and conditions of use.
The protection of technological measures and rights management information were introduced in
WCT and WPPT as effective measures to prevent infringement of copyright in digital
environment. The introduction of Sections 65A and 65B is expected to help the film, music and
publishing industry in fighting piracy.

VI. Reform of Copyright Board

Copyright Board
The Copyright Board during the last decade has changed significantly. Considering the diverse
nature of issues being dealt with by the Copyright Board, section 11 relating to the constitution of
the Copyright Board has been amended to make it a body consisting of a Chairman and two
members. A provision has also been introduced for payment of salaries and allowances to the
members of the Board. This reformist approach is timely, looking at the multifarious
responsibilities the Copyright Board is now called upon to discharge.
Overall the amendments introduced are forward looking. This will enable the Copyright Act 1957
to become as one of the best copyright legislations in the world.
Conclusion
The enactment of the Copyright Act, 1957, Copyrights Rules, 1958 and the amendments thereto
protects the interests of the creators of intellectual property while protecting the interests of the
public at large.

COPYLEFT
Copyleft is a concept by which a work is thrown open to third parties with some rights, like
copying, making changes etc and any derivative born out of such work will also be subject to
similar (Copyleft) terms and conditions. For example : A person who received a work with
Copyleft (license), would be free to use and adapt the said work, tweak and make improvements
to it but the resultant work will also come under the purview of such Copyleft only, with similar
set of rights and restrictions.
The bottom line of Copyleft is an opportunity for people to make use of a work and grant the same
set of rights to the other interested parties as well. While an entity grants other parties the right to
use a work to make modifications or adaptions to it, then the second-in-line should carry on,
without in any way hampering the chain, say by trying to claim proprietary rights over the
derivative born out of the Copyleft work. So a person who receives a Copyleft work and adapts it
will not be in a position to restrict the rights over the said derivative.
The Copyleft concept/form of licensing is quite refreshing in terms of free movement of a work.
It does not confine the rights in work to a single person or a minimal group of persons but rather
widens the area to include as many persons as are interested provided such persons are willing to
comply with the conditions of Copyleft, which again are quite reasonable. Such Copyleftforms of
licenses are more commonly found in the software industry, but is of course not confined to
Software but can be implemented to any work, be it artistic, dramatic or literary. It is also to be
borne in mind that Copyleft does not imply that the work is in public domain, where any person
cannot exploit a work in.
OPEN SOURCE
An open-source license allows for a software product to be shared in certain ways, or for some
types of collaborative research or development. In general, open-source licensing allows the source
code of a project to be open or transparent, utilized by third parties, or changed or manipulated by
members of a developer community
A permissive license is simple and is the most basic type of open source license: It allows you to
do whatever you want with the software as long as you abide by the notice requirements.
Permissive licenses provide the software as-is, with no warranties. So permissive licenses can be
summarized as follows:
 Do whatever you want with the code
 Use at your own risk
 Acknowledge the author/contributor

DIGITAL ARCHIVES (records or files)

Let’s start by defining “digital archiving”. There are two types of digitally preserved archival
records. Records which began life as a physical object of some kind, e.g. a paper manuscript, a
photograph, or a reel of magnetic tape which holds a music recording. In each of the examples I’ve
provided, some action must be taken to “digitize” the artifact, creating a digital instance such as a
scan of the photograph resulting in a .tiff or .jpg file, or an analog to digital conversion of the audio
tape resulting in a 24 bit / 96kHz .wav or .mp3 file.
And there are also records which were “born digital”, e.g. a digital image .png file, an .mp3 music
file or a .wav4 audio/video file. There isn’t a physical object in this case, so the instance that is
being preserved is a “born digital” file. Until four or
five years ago, there were persistent concerns about the fixity, or alternately the ephemerality, of
digital files and the storage technology intended to preserve these files. I believe these concerns
have largely been addressed. There are existing means to permanently preserve digital records that
take into consideration all reasonable eventualities up to and including truly extreme events. So
then, for born digital records, digital preservation is the only practical means of preserving these
records for the future. There was a brief period when digital storage technology hadn’t caught up,
when printing out records on acid free paper and preserving the paper records in buffered boxes
was seriously considered. But the digital technology has caught up and this is no longer considered
reasonable.
For digital instances of physical items, the advantages can be considerable. By providing digital
instances which can be accessed from anywhere on the planet, access is greatly expanded. And as
many researchers can accomplish their goals using high quality digital instances, the potential for
damage or simple wear and tear on delicate artifacts, can be greatly reduced. A good example are
one of a kind master magnetic tape recordings. These tapes deteriorate over time, even when they
are stored under optimal conditions. And each time the tape is played a tiny amount of damage
occurs. A very high quality digital instance can be kept as a repository copy and Web- friendly
.mp3 instances made available for general access.
It can be anticipated that there will still be occasions when only the original item will do, but these
can be kept to a minimum.
ICT: Information & Communication Technology
ICT has more recently been used to describe the convergence of several technologies and the use
of common transmission lines carrying very diverse data and communication types and formats.
Information and communications technology (ICT) refers to all the technology used to handle
telecommunications, broadcast media, intelligent building management systems, audiovisual
processing and transmission systems, and network-based control and monitoring functions.
Role: “Diverse set of technological tools and resources used to communicate and and to create,
disseminate, store and manage information.”
Technologies include:
 Computers
 Internet
 Broadcast Technologies (radio & TV)
 Telephony
Information- Wiki, Research
Communication- Facebook, Twitter
Entertainment- Video Games, Music
Technology- Laptop, Computer.

Benefits of ICT:
 Banking
 E-Governance
  -Commerce
 Education

Banking: Information and Communication Technology is used by banks for ATMs and online
banking as well as storing information on the magnetic strip of a credit or debit card. Banks also
use ICT to clear checks and handle electronic and international bank transfers. the adoption of ICT
in banks led to an improvement in customer service, facilitated accurate record-keeping and
enhanced the speed of overall services, ultimately leading to a more efficient and competitive
market. The real goal of ICT in banking is not just to provide access to technology, but linking
communities together in the long run.
Eg: Internet Transactions, swipe cards, international transactions.

E-Governance: E-governance is the application of information and communication technology

for delivering government services, exchange of information, communication, transactions,
integration, various stand-alone systems, and services between government and citizens,
government and business as well as back office processes and interactions within the entire
government frame work. The government being the service provider it is important to motivate the
employees for delivering the services through ICT. E-governance seeks to achieve Efficiency,
Transparency, and Citizen’s Participation. Enabling E-governance through ICT contributes to
Good Governance, Trust and Accountability, Citizen’s Awareness, and empowerment, Citizen’s
Welfare, Democracy, Nation’s Economic growth. ICT is the biggest enabler of change and process
reforms fade in face of what ICT has achieved in few years.

ICTs acts in speeding up the flow of information and knowledge between government and citizens
and transforming the way in which governments and citizens interact. According to the United
Nations Development Program (UNDP) the challenge for all countries is to create and develop a
system of governance that promotes supports and sustains human development. Governments in
many parts of the world have made huge ICT investments aimed at improving governance
processes.
 G2C: Govt to citizen to Govt.(Online grievances)
 G2E: Govt to Employ to Govt.(JeewanPraman)
 G2B: Govt to Business to Govt.(Online Tendering)
 G2G: Govt to Govt.(Service Delivery Gateway)
E-Commerce: ICT and e-commerce are inseparable terms as the e-commerce industry is
absolutely dependent on ICT for its operations and intensification. E-commerce is also referred to
as application of ICT in business and commerce. ICT is an umbrella term which involves usage of
computers, including hardware, software and networks used to communicate, store and manage
the requisite information. The growth of e-commerce is primarily dependent upon the boost in ICT
infrastructure. The Smartphone market and Internet diffusion has proved to be a catalyst for growth
of e-commerce industry.

Ecommerce means the sale and purchase of goods and services over electronic systems such as
the Internet. Business to Business (B2B): B2B is e-commerce businesses between one business
firm to another such as a manufacturer and a wholesaler or between a wholesaler and a retailer.
Business to Consumer (B2C): B2C is e-commerce businesses between a business firm and a
consumer such as between a manufacturer and consumer or retailer and consumer. Business to
Consumer (C2B): C2B is e-commerce businesses in which individual customers offer to sell
products and services to companies who are prepared to purchase them. This business model is the
opposite of the traditional B2C model.

Business to Consumer (C2C): C2C is e-commerce businesses in which individual customers

offer to sell products and services to other individuals who are prepared to purchase them.
a) Sales and Purchase through internet.
b) Online shopping from anywhere in the world.
Education: The need for ICTs in primary education is important as it creates educational
opportunities on a wide scale for those students who are unable to afford traditional classroom
teaching modules due to cost ineffectiveness, teacher unavailability, and some other factors. The
Information Communication Technology plays a much broader role along with education modules
such as the distance learning programs and education efforts for students unable to study in
universities of their choice, which were earlier not possible. Many universities in developing
nations provide distance education schemes and provide free courseware content through print
media, television, and audio visual contents, specifically for primary and higher education
students.
 E-Learning
  Distance Education
 Regular Education
E-Learning: Instead of lectures ICT provides interactive learning through PowerPoint,
audio- visual lectures, practical, Google Documents, YouTube Web classes, Digital
Libraries, Smart Classes.
Some common features of the new education system (called E-learning, distance learning,
internet based learning or web based learning) that has been created by information
communication technologies are:
· One can digitalize texts, images, sound, videos, leading to multimedia digitalized information.
· One can access any kind of information anywhere in the world in a few seconds.
· Digitalized information is more accessible, more interactive, easier to access, transport,
store and process
· Educational opportunities are close to home
· Students receive exposure to telecommunication technologies
· They can access to internet-rich learning environment
· They can contact with students in other locations all over the world
· They have opportunities to participate in online national and international events
· They can develop stronger relationships with classmates
· They can access to global resources and experts
· Their interaction with classmates will increase.