COPYRIGHT ISSUES IN DIGITAL

MEDIUM
• Copyright protects original works of authorship that are fixed in any tangible
medium of expression.

• Copyright arises as soon as a work is created.

• It doesn’t extend to any idea, procedure, process, system, method of operation,

concept, principle or discovery, unless fixed in a tangible form.

• Copyright act of 1957

• Literary, musical, dramatic works, cinematographic and sound

recordings-section 13.
• In digital medium, every web page accessible or published in the World Wide
Web is to be taken as a literary copyrightable work.

• It protects all written text materials, graphic images/designs, drawings, any

linked sound, video files or films, whether part of a web page or a website.

• Rights of copyright owner: a) to fix(store) the information in a tangible form

b) To reproduce the copyrighted work c) to sell, rent, lease or otherwise distribute

copies of the copyright work to the public d) to perform and display publicly the
copyright work e) to prepare derivative works based on the copyright work.
(section 14)
• Some of the internet activities like caching, browsing, mirroring, downloading,
uploading and file - swapping really infringe the 5 exclusive statutory rights of a
copyright owner

Digital Downloads and Reproduction Rights

• Digital downloads are temporarily stored in RAM. Whether it is to be referred as

fixed and thereby constitute a copy depends upon the facts and circumstances of
a given case.

• Kelly v. Arriba Soft Corp

Digital downloads and Distribution Rights

• Distributing and displaying copyrighted work of another without his

authorization amounts to an infringement of statutory exclusive right vested in
the copyright owner.

• Playboy Enterprises, Inc v. Frena

Digital Downloads and Display rights

• When a person views a page of a website using his browser, it seems clear that a
display has occurred. Who should be deemed responsible for the display? The
idea is to see, who is the publisher? and who is the user?
• When a browser requests a website, the request is executed by first searching
and then connecting to the said webpage or website.

• Once a connection is established, the said webpage is downloaded for the

viewing on computer system or network.

• In such scenario, the website owner is deemed to be the owner of the copyright
material which has been downloaded from the web server.

• Any subsequent acts of publication, transmission or storage of downloaded

information in an unauthorized manner by any other person will amount to
infringement of the display rights of the website owner.
• Linking and framing

• Filtering

Copyright in Digital Goods

• Computer software is a digital good.

• One can either download it from the internet or purchase licensed software
embedded in a removable magnetic or optical storage medium.

• Computer software is commonly used to describe computer programs and

ancillary materials.

• Computer programs are literary works.

• The computer program whether written in assembly language or high-level
language is known as the source code.

• When the source code is translated by an assembler or compiler into machine

language, it is known as the object code.

• The question is whether the object code existing in intangible form be referred
to as a literary work and hence be protected under copyright law?

• Data Cash System Inc v. JS&A Group, the program was not protected by
copyright, as it was not in a form in which it would be seen and read with the
naked eye.
• Sega Enterprises Ltd. V. Richards, Apple Computer Inc. v. Franklin Computer
Corpn, held that object code was subject to copyright protection.

International treaties and Digital Medium

TRIPS Agreement- Trade Related Aspects of Intellectual Property Rights

• It establishes minimum standards on almost all areas of IPRs.

• Article 10.1- computer programs, whether source code or object code, shall be
protected as literary work under the Berne Convention.

• Article 11 speaks about rental rights with respect to computer programs and
cinematographic films.
WCT and WPPT

• The World Intellectual Property Organization (WIPO) held a diplomatic

conference in Geneva led to the adoption of two treaties.

• WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms

Treaty (WPPT).

• India has acceded to both the treaties on July 4th, 2018. even before this, India
has extended the reproduction rights to the digital environment by virtue of
Article 9 of the Berne Convention. (reproduction right).
• Art 8 of WCT and Art.14 of WPPT have established the Author,s or performer’s
right of communication to the public of a work, a performance or a phonogram
must be covered by exclusive rights.

• authors of literary and artistic works shall enjoy the exclusive right of
authorizing any communication to the public of their works, by wire or wireless
means, including the making available to the public of their works in such a
way that members of the public may access these works from a place and at a
time individually chosen by them. (Article 8).

• Recognizes communication of work to the public through digital medium.

• TPM- Technological Protection Measures- in digital technology, on one hand
provides challenges to the right owners but on the other, it also offers new tools
for the right owners to protect their intellectual property.

• Though there are encryption technologies which are available, whereby right
owners can protect their rights but again these technologies could also be
circumvented. Hence legal measures against such circumvention have become
necessary.

• Art 11 of WCT and Art. 18 of WPPT – OBLIGATION REGARDING

TECHNOLOGICAL MEASURES
• Contracting parties shall provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that are
used by the authors in connection with the exercise of their rights under this
Treaty or the Berne Convention and that restrict acts, in respect of their works,
which are not authorized by the authors concerned or permitted by law.

• Section 64 (power of police to seize infringing copies), section 65(punishment)

and section 65A (protection of technological measures).
TRADEMARK ISSUES IN DIGITAL MEDIUM
• A trademark means a mark capable of being represented graphically and may
include a word, name, symbol device, numeral, letters, signatures, label, ticket,
brand, slogans, pictures, characters, sounds, smell, shape, logo, graphic designs,
three dimensional form, moving image, product or packaging features etc.

• It is distinctive of a person’s goods or services and is used in a manner that

identifies those goods or services and distinguishes them from the goods and
services of others.

• Distinctiveness is needed for registration of any sign as a trademark. It may be

either inherently distinctive or may acquire it through a secondary meaning.
Rights of a Trademark Owner

• Own and exploit the said mark for the goods or services specified in the
registration in the market place.

• Sell or permit its limited use

• Assign it a goodwill value

• Stop others from using the said mark or a substantially or deceptively similar
mark

• Initiate legal action against the infringer.

Trademark and domain name

• The term domain name describes any alphanumeric designation which is registred
with or assigned by any domain name registrar, domain name registry or other domain
name registration authority as part of an electronic address on the internet.

• www.amazon.com, www. Disney.com, www.specimen.com

• Cybersquatting is the practice of registering an Internet domain name that is likely to

be wanted by another person, business, or organization in the hope that it can be sold
to them for a profit. It involves the registration of trademarks and trade names as
domain names by third parties, who do not possess rights in such names.

• ‘Green Products Co. v Independence Corn By-Products Co.’ (ICBP)

• Reverse Domain Name Hijacking: done by people who register confusingly
similar versions of domain names, pointing them to gripe sites that carry some
other propaganda.

• Typo-Squatting: done by people who register the domain names incorporating

variations of well-known trademarks terms such as misspellings
(micr0soft.com) or adding of prefixes or suffixes to the existing domain name
(yahooindia.com) and use them for websites to take advantage of unwary
Internet users.

• Yahoo Inc. Corporation v Akash Arora

• Yahoo.com and yahooindia.com

• Rediff communication Ltd v Cyber Booth

• www.rediff.com and www.radiff.com.

• Domain name can be a valuable corporate asset. A domain name is more than an
internet address and can be entitled to the equal protection as trademark. With
the advancement and progress in the technology, the services rendered in the
Internet site have also come to be recognized and accepted and are being given
protection so as to protect such provider of such service from passing off the
services rendered by other as his services.
Domain Name Distribution

• The Network Solutions Inc.(NSI) and ICANN (Internet Corporation for

Assigned Names and Numbers) has been registering domain names since 1992.

• ICANN as a successor of NSI come out with its own version of dispute
resolution policy called ‘Uniform Dispute Resolution Policy (UDRP)’ in 1999.
(non-judicial dispute resolution)

• It is a comprehensive policy that covers domain name dispute areas, like

trademark or service mark infringements. It has been able to create a basis for
global uniformity in the resolution of domain name disputes.
• The National Internet Exchange of India (NIXI), has been set up to facilitate
exchange of domestic internet traffic within the country By internet service
providers in India.

• NIXI has also been entrusted with the responsibility of setting up of .IN country
code top-level domain registry by the Government of India.

• .INDRP- .IN Domain Name Dispute Resolution Policy and INDRP Rules of
Procedures are based on the Indian Arbitration and Conciliation Act, 1996.
PROTECTION OF DATABASE
• Database is a term with no precise definition. At its most generic, it is a collection of
independent components, such as pieces of information, data, or works, arranged in a
systematic or methodical way and which are individually accessible by electronic or
other means.

• In the Indian Copyright Act there are no specific meanings attached to word databases
or computer databases. Compilations including databases are defined as literary works.

• database is defined in Article 1(2) of the European Union Directive on Legal

Protection of Database as a collection of independent works, data or other materials
arranged in a systematic or methodical way and capable of being individually accessed
by electronic or other means.
• The Directive on the legal protection of databases was adopted in 1996 and was
evaluated in 2018-European union.

• The Directive on the legal protection of databases protects databases by

copyright if they are original by reason of the selection or arrangement of their
content.

• Non-original databases can also be protected if the investment in obtaining,

verifying and presenting the data was substantial.

• Non-original databases include compilations of legal cases and laws, listings of

advertisements and databases of scientific publications.
Copy right protection and sui generis right

• Conflict between sweat of brow doctrine and modicum of creativity.

• Sweat of brow doctrine- The model advocates that databases and factual
compilations receive protection per se, i.e. without any showing of creativity or
original authorship.

• Proponents of this theory, better known as the “sweat of the brow” or

“industrious collection” doctrine, justify their position by arguing that
protection should be extended to databases as a reward for the hard work and
investment required to compile the facts and information contained in the
database.
• Advocates of the second model would only extend copyright protection to the
“expression” contained in the database, which is limited to the original selection,
coordination, or arrangement of facts in the database — but not the facts
themselves.

• EU Database Directive, which allowed the information within a database to be

protected under a new sui generis right.

• The protection of databases is known as the sui generis right — a specific

property right for databases that is unrelated to other forms of protection such as
copyright. The copyright and the sui generis right may both apply if the
conditions of protection for each right are fulfilled.
• Sui generis right protects the database regardless of their originality, it is
therefore different from copyright.

• The only criterion for this special protection is substantial investment in the
obtaining, verification or presentation of the contents.

• What is the required threshold of investment remains rather unclear and may
vary depending on the jurisdictions and circumstances.

• Sui generis database right belongs to the maker of the data base, defined as the
person, who bears the risk of the investment.
• The sui generis right protects “extraction” and/or “re-utilisation” of the whole
or substantial part, evaluated quantitatively and qualitatively, of the contents.

• “Extraction” here means the permanent or temporary transfer of contents to

another medium by any means or form; and “re-utilisation” means making the
contents available to the public by any means.

• It is expressly stated that repealed and systematic extraction of insubstantial

parts of a database can continue infringement

• The right lasts for 15 years from the completion of the database, or 15 years
from its becoming available to the public during a 15 year period.
Protection in the Indian Scenario

• Information Technology Act, 2000

Section 43 of the Indian Information Technology Act, 2000 imposes liability “to
pay damages by way of compensation not exceeding 1 crore rupees to the person
so affected” if “any person without permission downloads, copies, or extracts any
data, computer database or information from such computer, computer system or
computer network.

• Indian Copyright Act, 1957