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04 August 2008
Indian copyright law dates back to 1957. Covering a wide spectrum of artistic, literary, dramatic and musical works, the statute affords protection to authors from infringement of their multifarious rights.
Two international treaties cover the subject of copyright on the Internet. They provide global protection of the rights of copyright holders, performers and producers of phonograms. The World Intellectual Property Organization (WIPO) Copyright Treaty came into effect in 1996 in order to develop and protect the rights of authors in literary and artistic works uniformly and effectively across all international jurisdictions. While the WIPO Copyright Treaty clarifies that it protects only expressions of ideas and not the ideas themselves, the treaty includes within its ambit digital forms of the work and extends the right of reproduction and exceptions thereto to the digital sphere. As an extension of the Berne Convention for the Protection of Literary and Artistic Works 1886, the treaty provides that storage of a protected work in digital media in an electronic form constitutes reproduction.
The WIPO Performances and Phonograms Treaty 1996 was also propagated to meet the demands brought about by a boom in the communication technologies field. The treaty clarifies that the protection it offers does not prejudice the copyright in literary and artistic works and does not derogate from the tenets of the Rome Convention 1961. Conferring protection on performers and programmers, the treaty identifies and defines all associated terminology such as ‘performers’, ‘producers of phonograms’, ‘fixation’ and ‘communication to the public’. Providing a protection term of 50 years, the treaty is considered to be progressive since it equates performers and producers of phonograms with contributors of intellectual property.
To date, India is not a signatory to either treaty, despite WIPO’s encouragement. As the Internet becomes the primary medium of communication, web piracy is also gaining ground. As the home of the world’s most vibrant film and entertainment industries, India is under a growing threat from piracy. Amendments to the Copyright Act have been proposed in order to incorporate a digital rights management (DRM) scheme. This will involve two sections dealing with protection of technological measures and protection of rights management information.
If India does not become a signatory to the two WIPO treaties, the DRM scheme will fill the void by providing for technological measures which are currently covered only by the internet treaties. However, with the access control technology that accompanies DRM, the distinction between legitimate and illegitimate misuse of technology (ie, under the ‘fair use’ proposition and for infringement actions) may become blurred. The amendment also proposes allowing aggrieved copyright holders to avail themselves of civil and criminal remedies and laying due emphasis on the intention to commit an infringement.
It would be of benefit to India to become a signatory to the two treaties and amend its own legislation to effectuate DRM. Such a step would ensure strong protection with regard to the use of creative works on the Internet both inside and outside India.
The commercial gain obtained through digitization and digital relay is undoubtedly lending a significant boost to India's cultural and creative industries. Digital networks will ensure that that the country's artistic and original works reach new markets across the world, while being delivered directly to paying customers. With piracy causing yearly losses of $4 billion and 80,000 jobs in the entertainment industry, legal levers seem to be the most effective remedy.
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