Model Answer
0 min readIntroduction
Digital copyright, the legal right granted to the creator of original works in digital form, faces unique challenges in the age of the internet. The ease of copying and distribution necessitates robust protection mechanisms. Technological Protection Measures (TPMs) – technologies like encryption, access control, and digital watermarking – are employed by copyright holders to prevent unauthorized access, use, and distribution of their works. However, despite their introduction and legal recognition, digital copyright remains vulnerable. The 2012 amendments to the Copyright Act, 1957, were a significant attempt to strengthen the legal framework for digital copyright protection in India, responding to the evolving digital landscape and international obligations.
The 2012 Amendments and their Impact
The 2012 amendments brought several key changes impacting digital copyright protection:
- Introduction of Section 65A: This section specifically addresses the circumvention of TPMs. It prohibits the manufacture, sale, import, distribution, or commercial rental of devices or services primarily designed to circumvent effective technological measures. This aimed to deter the creation and use of tools that bypass copyright protection.
- Safe Harbour Provisions (Section 52(1)(c)): The amendments expanded the scope of safe harbour provisions for internet service providers (ISPs). ISPs are shielded from liability for copyright infringement by their users, provided they adhere to a ‘notice and takedown’ procedure. This means they must promptly remove infringing content upon receiving a notice from the copyright holder.
- Statutory License for Broadcasting Organizations (Section 31D): This provision introduced a statutory license for broadcasting organizations to communicate sound recordings to the public. This addressed the issue of broadcasters needing to obtain licenses from multiple copyright holders.
- Amendments to Section 19: Clarified the scope of compulsory licenses, particularly in relation to literary and musical works for certain purposes like educational use.
Impact on Digital Copyright Protection
The amendments have had a mixed impact:
- Strengthened Enforcement: Section 65A provided a legal basis for prosecuting individuals involved in TPM circumvention, enhancing enforcement capabilities.
- Reduced ISP Liability: The expanded safe harbour provisions incentivized ISPs to cooperate with copyright holders in removing infringing content, reducing their legal risks.
- Facilitated Legal Access: The statutory license for broadcasting organizations streamlined the process of obtaining licenses for sound recordings.
Limitations and Ongoing Challenges
Despite these improvements, digital copyright remains insecure due to several factors:
- Circumvention Remains Prevalent: Despite Section 65A, circumvention tools are readily available and continue to be used. The effectiveness of the law is hampered by the rapid evolution of circumvention technologies.
- Notice and Takedown Limitations: The ‘notice and takedown’ system is reactive and can be slow. Infringing content can remain online for a significant period before being removed. Moreover, it places a heavy burden on copyright holders to constantly monitor the internet for infringements.
- Fair Dealing/Fair Use Ambiguity: The scope of ‘fair dealing’ (as per Section 52) remains ambiguous, leading to legal disputes over permissible uses of copyrighted material.
- Digital Rights Management (DRM) Issues: Overly restrictive DRM can hinder legitimate uses of copyrighted works, creating a tension between copyright protection and user rights.
- Cross-Border Infringement: The internet’s borderless nature makes it difficult to enforce copyright laws against infringers located outside India.
Table: Comparison of Pre- and Post-2012 Amendment Provisions
| Provision | Pre-2012 | Post-2012 |
|---|---|---|
| TPM Circumvention | No specific legal provision | Section 65A criminalizes circumvention |
| ISP Liability | Limited safe harbour provisions | Expanded safe harbour with ‘notice and takedown’ |
| Broadcasting Licenses | Multiple licenses required | Statutory license introduced (Section 31D) |
Conclusion
The 2012 amendments to the Copyright Act, 1957, represented a crucial step towards strengthening digital copyright protection in India. They introduced vital provisions addressing TPM circumvention and ISP liability. However, the amendments haven’t fully secured digital copyright due to the persistent challenges of circumvention, the limitations of the notice-and-takedown system, and the complexities of cross-border enforcement. A more proactive and nuanced approach, including greater international cooperation, clearer fair dealing guidelines, and potentially exploring alternative enforcement mechanisms, is needed to effectively address the evolving threats to digital copyright in the future.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.