Is ‘Fair Use’ of Copyrighted Work a thing of the past?
The right to fair use of an intellectual property is well-recognized in the copyright law worldwide, but this right of a common man granted by law is to be threatened by the new regime of allowing technological copyright protection measures[i] in digital work.
What is copyright? by Serendip Studio
Digital rights management (DRM) is a term which refers to various technologies that are used by software and hardware manufacturers, publishers, copyright holders, and individuals with the intent to control the use of digital content. Digital rights management includes technologies that control the use, modification, and distribution of works, as well as systems within devices that enforce these policies
Copyright holders are allowed to use DRM to safeguard their work being duplicated or utilised by others. However copyright laws across the world allow fair use of the copyrighted work. fair use essentially means using the copyrighted work for as part of or for the purposes of a commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship etc.
The right to Fair Use has therefore played a very important role. It has helped research, education and general intellectual development. The right to Fair Use now stands threatened. With the emergence of WIPO Internet treaties (World Intellectual Property Organization Copyright Treaty, and World Intellectual Property Organization Performances and Phonograms Treaty), this right to fair use of digital media protected by DRM is penalised by law, irrespective of taking into consideration if it was a fair use or not.
Thus a para copyright regime has emerged which is detrimental to the interests of general public, as we can no longer use any copyrighted work as Fair Use.
A diagrammatic representation of fair use of copyrighted work by Serendip Studio
Doctrine of First Sale
It also affects adversely one of the well settled doctrines, Doctrine of First Sale, which is the Doctrine of exhaustion of rights on first sale which implies that all the rights of the owner is exhausted as the first sale is made by him, means that owner of copyright have no control over the subsequent sales made of what is to be done after the first sale is done, but due to this new protection measures owners tends to have a grip over the rights and products even after the first sale is done, and buyer inspite of being a buyer have mere licensee rights rather than having full ownership rights.
How does DRM Work?
DRM is a general term used for a set of technologies, software and hardware, that seek to identify, protect, and manage digital content in terms of access, distribution, consumer usage, and payment.[ii] In a very common sense approach it can be said that Digital Rights Management is management of rights Digitally, i.e. Using the advanced technological measures to manage and control ones rights.
In terms of copyright law, the intellectual assets of the copyright holders are managed and controlled digitally by copyright holders through a technological mechanism. So DRM basically provides for an additional protection to a work, which is anyway protected by the Copyright law. It is a kind of additional protective measure which one applies to his/her intellectual property and by this the work may remain out of the reach of the public, and the use which is otherwise permitted by the law of the land may not be done by the general public, specifically as in case of Fair use permitted in copyright law.
It is to be explained through an example: If an author writes a book and has an apprehension of the work being copied, it has a protection under copyright law that the infringement is punishable according to the provisions of law, this is the first fold protection of the the work, another protection which is provided by this new Legal regime of Digital Rights Management is that the owner of the work keep it locked and the person who is authorised by the key of the lock may only use the work anone who try to circumvent the protection applied by the lock is punished according to this new provisions of law, this is another para copyright protection of the work by the provisions of Digital Rights Management.
It is in general terms it a measure to limit access or control over a protected work after the sale is made. Such as limiting by scrambling a music CD for further copying, or locking a particular device to be used only with a specific service providers. Digital Rights Management techniques have serious implication on consumer rights which is to be taken seriously.
Copyright 2012 Amendment and Digital Rights Management Provisions
The copyright law of India by the amendment of 2012 incorporates the provision of Digital Rights Management in the legal regime of copyright protection[iii], India not being a signatory to World Intellectual Property Organization Copyright Treaty, or World Intellectual Property Organization Performances and Phonograms Treaty still incorporate the provisions of these international documents to be in line with the International standards of copyright law, these provisions of Digital Rights Management in Indian Copyright regimes are in line with that of European Union and Digital Millennium Copyright Law of United States. Though Indian provisions of Digital Rights Management are not as harsh as of the other adaptations of this International Standard, but still in spite of not being a signatory to a treaty, and not having any obligation there is still a question that what compelled the Indian legal regime to incorporate these provisions in the Indian legal system. These new provisions of Indian copyright law is also detrimental to Indian copyright law in three manners, First, it affects the well settled doctrine of Fair Use of copyright law, Secondly these provisions will be creating a Para copyright regime and provides relatively higher protection to the works, and also thirdly, these provisions are against the very notion of collective administration of rights which is prevalent in the Indian legal system of copyright.
The recognition of these kind of third generation rights, i.e. Digital Rights in Indian legal system has both Positive and Negative effects in Indian copyright law, we will examine both the aspects in light of a question that does India really needed the provisions of Digital Rights Management ?
One of the justifications as provided by the government for introducing Digital Rights Management provisions into Indian copyright law is to bring Indian copyright law in line with these WIPO Internet Treaties[iv] ( WCT and WPPT), but the fact of not signing or ratifying these treaties have not been noticed by the Authorities. The WTO Agreements or TRIPS Agreement does not make any obligation on India to incorporate Digital Rights Management provisions into its Legal system. it can be assumed that it is the media house lobbying as many scholars have discuss about the intense lobbying from the side of the industry during the drafting of Digital Rights Management legislation in different national jurisdictions.[v] and also international pressure on India which compelled the legislators to pass such a draconian provisions into Indian copyright law. One of the factors of International pressure is the continuous Listing of India in United States Trade Representative’s Special 301 Report, which lists the countries which do not provide ‘adequate and effective’ protection to the intellectual property into their country.
Legal Provisions Related to Digital Rights Management
With the advent of digital technologies a serious threat had emerged in order to cope up with the infringement of copyright, copyright infringement becomes rampant in the era of digitisation and such the need to control and regulate digital piracy and copyright infringement emerged in law. The advantage of digital copies as compared to analog copies of the copyrighted work, are more identical, easy to copy, and faster copying are the major factors which boosted the infringement of copyrights over the virtual world. With the emergence of this problem WIPO comes up with the regulation related to digital copying in 1996 with two Internet treaties[vi], WIPO Copyright Treaty (WCT) and the WIPO Performers and Phonograms Treaty (WPPT) to cope up with the challenge of digital copying.
Article 11[vii] of WIPO Copyright Treaty and Article 18[viii] of WIPO Performers and Phonograms Treaty obliges parties to have ‘adequate and effective’ legal remedies to prevent the circumvention against applied effective[ix] technological protection measures, similarly Article 12[x] of WIPO Copyright Treaty and Article 19[xi] of WIPO Performers and Phonograms Treaty provides for contracting parties to have adequate and effective legal remedies against the unauthorised tampering of rights management information which is provided by the owner and also dealing knowingly with the copies of tampered rights management information.
India though not being a party to these treaties provides for similar protection to the copyrighted works by virtue of section 65A and 65B of Indian copyright Act 1957,these two new provisions facilitated the entry of WIPO internet treaties into copyright system. Section 65A deals with the protection of technological measures and 65B deals with tempering of rights management information.
According to section 65A[xii] the first clause deals with providing penal measures to those who circumvent the applied effective technological measure to use any right conferred by the copyright law by the owner and they do so intentionally will be penalised with imprisonment for 2 years and Fine.
Second clause enumerates a long list of exceptions for which the provisions of first clause will not be applicable. It mentions that any person tampering with the Technological protection measure applied for purpose not expressly prohibited under the act will not attract penalties this provision also applies to third parties who facilitates the circumvention, but they have to maintain the record of persons and the purpose for which the circumvention is facilitated. Apart from all this exemptions this provisions also expressly exempts certain activities for which circumvention can be allowed. i.e. encryption research, lawful investigation, security testing of a computer system or a computer network with the authorization of its owner or operator, protection of privacy, and measures necessary in the interest of national security .
some of the implications which are very much clear from the legislated provisions of circumvention can be, first, the legislative intent of having a high bar in order to invoke the provisions of the section is the intention clause which is mandatory to invoke the provisions of the section. secondly, it expressly limits the orbit of the section to those activities which are not allowed by the copyright law, i.e. all those activities for which the copyright law does not prohibit the copying can be done by even tapring with technological protection measures. and lastly allowing circumvention with the help of third parties , provided certain requirements are to be met, was a significant step towards the liberalising of the Digital Rights Management application in Indian law.
Section 65B[xiii] of the copyright act provide for penalty to any person who knowingly removes or alters the Rights Management information from the digital content or sells and distributes the content knowing that the rights management information is tampered or removed shall be penalise with 2 years of imprisonment and fine, this section also provides for availing civil remedies along with the criminal penalties prescribed.
This provision is more rigid as compared to the provision of technological protection measures because i do not provide for any exception in the law for tampering or altering with Rights Management Information and also availing civil remedies along with criminal remedies shows a stricter approach.
Right of Fair use and Digital Rights Management
“The most obvious diminution of the public’s privileges in the digital age are in the category where exceptions or limitations to copyright cannot be exercised because a work is ‘fenced off’ by a technological protection measure.”[xiv]
To have an excerpt from a work and use it for the purposes and activities defined as a fair use activity is permissible in the copyright and it also encourages creation of new works, and this is well settled in the copyright that adverse economic incentives will be created if unrestricted and absolute copyright is created, with this in mind a common goal of the copyright law with a look over fair use doctrine is creation of new work and also development of knowledge.the restriction of the work into the locked compartments of the Digital Rights Management protected copyrighted contents will not allow one to use, even though fair as explained by the law. The application of Digital Rights Management restricts the users to engage with the existing works, and use them accordingly in the terms of fair use, and also these digital lock ups will be creating monopoly in terms of rights exercised by the owners, such a creation of monopoly has never been the objectives of copyright law.
The deployment of DRM technology, added to the legal protection, virtually destroyed the fair use provisions of the copyright law.[xv]
one of the major challenges for the legal doctrine is the ambiguity in defining what constitutes a fair use and what not, and as such In order to preserve fair use exceptions, DRM systems would need to accommodate for unauthorised uses of copyrighted works, but the fluidity of the doctrine means that it cannot be defined with precision. As such, difficulty lies in expressing the variables that may arise in each case in computer code; from a technological perspective, there is no precise algorithm for deciding whether a use is fair or not.
Copyright and the fair use doctrine serve to provide authors with incentives to create whilst also allowing users to engage with creative content and inspiring the creation of new works, thus benefitting society overall.
The problem with the Indian copyright protection laws are more procedural rather than substantial, it has not been statutory instruments and sanctions but rather been of effective enforcement the copyright law in itself sufficient to control and protect the violations of copyright, and in the present digital era the law of copyright needs more effective enforcement rather than restricting and keeping the works into digital lock-ups as provided by the DRM provisions. Digital technology may play a positive role in the sphere of education. Provisions for DRMs may not only concentrate the copyright materials with powerful corporation and the entertainment industries but may seriously restrict education, creating ‘walled gardens’ within higher educational institutes by driving educators to use DRM in order to restrict access to digital content or lock away digital works.[xvi] introduction of DRM technologies in various field of education results in making the materials unaffordable and beyond the reach of persons by creating a virtual limitation to access to knowledge in spite of having the provisions to use them by copyright law. in terms of DRM the biggest concern is the consumer right to fair use, which is at stake in the current debate of having or not having DRM provisions in our law. These provisions must have to undergo a cost benefit analysis one again and the freedom of Fair use of the work as mentioned in copyright law must not be curtailed.
[i] The term technological protection measures is defined in the Information Society Directive as any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the right holder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC .
[ii] D.L. Burk, ‘Legal and Technical Standards in Digital Rights Management Technology’ (5 April 2005). pg 17
[iii] Sections 65A and 65B of the Indian Copyright Act, which were inserted by the Copyright (Amendment) Act 2012. The Copyright (Amendment) Act 2012 came into force on 21 June 2012.
[iv] The WIPO Copyright Treaty, 1996 (‘WCT’) online available at http://www.wipo.int/treaties/ip/wct/index.html. and WIPO Performances and Phonograms Treaty , 1996 (WPPT), online available at http://www.wipo.int/treaties/ip/wppt.html. both constitutes together as WIPO internet treties
[v] see Burk Dan L and Cohen Julie E, Fair use infrastructure for rights management systems, Harvard Journal of Law & Technology, 15 (1) (2001) 49 and Burk Dan L, Legal and technical standards in Digital Rights Management technology, Fordham Law Review , 74 (2) (2005) 558.
[vi] While these two treaties were adopted in the year 1996, they came into force only in 2002. The full text of the WIPO Copyright Treaty is available online at http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html (15 March 2012). For full text of the WIPO Performers and Phonograms Treaty, http://www.wipo.int/treaties/ en/ip/wppt/trtdocs_wo034.html (15 March 2012).
[vii] Article 11: Obligations concerning Technological Measures “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by 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.”
[viii] Article 18: Obligations concerning Technological Measures “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.”
[ix] According to the Information Society Directive, a technological protection is deemed to be ‘effective’, where the use of a protected work or other subject matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective, Article 6(3) of the Information Society Directive.
[x] Article 12: Obligations concerning Rights Management Information
“(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.
(2) As used in this Article, “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.”
[xi] Article 19: Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast, communicate or make available to the public, without authority, performances, copies of fixed performances or phonograms knowing that electronic rights management information has been removed or altered without authority.
(2) As used in this Article, “rights management information” means information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public.
[xii] 65A.Protection of technological measures.
- Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, 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.
- Nothing in sub-section (1) shall prevent any person from,—
(a) doing anything referred to therein for a purpose not expressly prohibited by this Act:
Provided that any person facilitating circumvention by another person of a technological measure for-such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or
(b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or
(c) conducting any lawful investigation; or
(d) doing anything necessary for the purpose of testing the security of a computer system or a
computer network with the authorisation of its owner; or
(e) operator; or
(f) doing anything necessary to circumvent technological measures intended for identification or
surveillance of a user; or
(g) taking measures necessary in the interest of national security.
[xiii] 65B.Protection of Rights Management Information.
Any person, who knowingly,—
(i) removes or alters any rights management information without authority, or
(ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority,copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine:
Provided that if the rights management information has been tampered with in any work, the owner of copyright in such work may also avail of civil remedies provided under Chapter XII against the persons indulging in such acts
[xiv] Foged, T., ‘US v EU anti circumvention legislation: preserving the public’s privileges in the digital age?’ , (2002) EIPR 24(11) 525-542, p527
[xv] JE Cohen, ‘WIPO Copyright Treaty Implementation in the United States: Will Fair Use Survive’  EIPR 21, 236–247.
[xvi] WW Fisher and W McGreveran, The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age, a Foundational White Paper, p. 70: http://cyber.law.harvard.edu/media/files/copyrightandeducation.html