IMPACT OF DIGITILATION ON CONTENT PRODUCERS AND USERS AND NEW INTERNATIONAL INSTRUMENTS
– Manpreet Kaur Bhatia
Asst. Prof., Indore Institute of Law
– Vivek Wilson
Asst. Prof., Indore Institute of Law
INTRODUCTION
The users obviously get the better half of the deal. They get the copyrighted content at a very low and affordable cost or even sometimes free of cost. Through the pirated copies, they get access to information, knowledge and entertainment, which would otherwise have been not available to them. The availability of pirated books gives access to information and knowledge. the availability of pirated music and movies in the form of compact discs and video cassettes provides entertainment. And the availability of software and books helps people to makes a good career for themselves. The prosperity of Indian software industry can be attributed to the availabilityof abundant number ofsoftware professionals who have emerged partly because of the easy accessibility to pirated software and books 1.
ADVANTAGES TO CONTENT OWNERS
Content owners basically lose out on the deal but they also get certain advantages. They get fame and popularity, which would act as a major source of inspiration to create new works. Such fame and popularity could be used by them to make profit in future endeavours and in other forms of business. For example, the content owners of motion pictures and music could make profit through public performances, television shows and theatre shows.
Content owners of software lose out on selling original copies of their software but they could get good business if their software becomes famous and is available to lots of users because while deciding to buy software, the availability of qualified professionals who could use the software is an important issue for a company. If more people are trained in the software then more companies would buy it because the company would have abundant qualified professionals to work with it. The availability of pirated software has been helping the development of software industry in India because of the profuse availability of qualified software professionals.
THE CONFLICTAND ITS RESOLUTION
If legal protection for DRM systemdevelops to a stage where piracycould be largely controlled, the people living in India would get the stick, as they will lose access to information, knowledge and entertainment. On the other hand strong protection for DRM systems is good for developed countries because the objectives of copyright law which is to promote the progress of useful arts would be furthered if piracy is controlled. In the digital world there are no territorial limits and so different rules can’t be framed based on the development status of a nation. This gives rise to a conflict between the interests of developing countries like India and developed countries. The developed countries want a strong protection against circumvention of DRM technologies and the developing countries like India went a weaker protection in order to get piracy advantages. The interests of both developed and developing countries can’t be satisfied in the digital world due to lack of territorial limits. Under such circumstances, it is sensible to make policies best for the world as a whole.
With a strong DRM system in place the content owners in the world would be encouraged to do more business on the internet and would gain more profits because of the wide reach and quality offered by the digital world. Such a scenario would provide good economic incentive, which would result in an increase in the creation of useful arts. That would be very beneficial to the society as a whole.
On one hand, if piracy is reduced to a considerable extent, the authors would be encouraged not only in developed countries but also in developing countries. This would encourage authors who were not too keen at putting full time efforts in creation of useful arts because of lack of economic incentives as an end to piracy would increase the economic incentives. Therefore, a strong DRM system would have a good impact on both developed and developing countries. On the other hand, a weak DRM system would help India and other developing countries in getting access to information but that would reduce creativity all over the world. If there is less creation there would be less information, knowledge and entertainment. Such a result is not good for society.
There are no efficient alternatives other than the copyright system to promote the progress os useful arts and the copyright law would not work efficiently with a weak DRM system. Therefore, the world is better off with strong laws against circumvention of DRM systems. That would help curb piracy to a large extent, which would in turn encourage the development of useful arts. Though the people in India and other developing countries might have to suffer slightly such burden is necessary for the good of mankind as a whole. In order to make sure that India would not be deprived of vital information and knowledge, the government could ensure supply of content at a low cost by subsidizing it. The content owners might also be willing to sell content on Compact Discs or other media for which rules could be made based on territorial basis at a low price because they make most of their profit through business in developed countries and any profit that they get in developing countries would be a bonus. Therefore, for the good of world as a whole and for encouragement of creation of useful arts, it would be advisable for India to have strong anti-circumvention laws.
Implementing strong anti-circumvention DRM systems, which could stop piracy completely, promotes progress of useful arts in developed countries but will deprive access to information, knowledge and entertainment to people in developing countries like India. Because of the non-divisible nature of the Internet and the web, it cannot be divided like land into different territories in order to make different rules for different countries based on the development status of the country. Under such a situation, a system that would be beneficial to the world as a whole should be adopted. After looking at the interests of both developed and developing countries, it would be advantageous for the world as a whole to have a strong legal protection against circumvention of DRM systems because that would encourage creativity in useful arts which would in turn be beneficial to mankind. If there is no creation there would be no information, knowledge and entertainment. Therefore, instead of putting an end to creation as a whole it is better to encourage its progress by implementing strong anti-circumvention laws in India and all nations of the world.
So far most high profile Internet cases have taken place in the United States. But the global nature of the Internet means the copyright fight is being felt the world over.
The principal international copyright treaties establish minimum standards for copyright protection, binding all signatories to the respective treaties; the Berne Convention for the Protection of Literary and Artistic Rights, the Universal Copyright Convention (UCC), and the Agreement on Trade Related Aspects of Intellectual Property Rights. The signatories include the United States, the member states of the European Union (EU) and the member states of the World trade Organization (WTO). Because each country has its own set of national laws and citizens who are transacting online and offline thousands of times a day, manyinternationalorganizations are working to harmonize laws sealing withintellectualproperty and other rights between the individual nations and the EU collective.
Recently the World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 and the WIPO Performances and Phonograms treaty of 1996 entered into force; the United States signed both, the EU member states are expected to follow suit. The treaties essentially reiterate the principles of the Berne Convention and the TRIPS Agreement, while adding provisions that address digital transmissions and technological protection measures.
Since the advent of commercial Internet services almost twenty years ago, there have been many debates about proposals to regulate services provide online. The most heated debates have touched on four hot button issues: (1) privacy (2) security (3) copyright and (4) pornography and censorship. But never has there been a debate in this context as heated, emotional and transatlantic as the debate during the last years about the efforts to protect copyright with the Stop Online PiracyAct (SOPA) and theAntiCounterfeiting TradeAgreement (ACTA). This is because both these texts touched all four of these hot issues at once and because the SOPA and ACTA could have profound (and as of now hard to ascertain) implications for the evolution of the Internet and the services provided over it
ANTI-COUNTERFEITING TRADE AGREEMENT
The Anti-Counterfeiting TradeAgreement is a proposed plurilateral agreement for the purpose of establishing internationalstandards on intellectual property rights enforcement. ACTAwould establish a new international legal framework that countries can join on a voluntary basis and would create its own governing body outside existing international institutions such as World
Trade Organization (WTO), the World Intellectual Property Organization (WIPO) or the United Nations. Neighboring countries have described it as a response “to the increase in global trade of counterfeit goods and pirated copyright protected works.” The scope ofACTA includes counterfeit goods, generic medicines and copyright infringement.
In mid – 2006, US first met with Japanese officials to come up with a “Plurilateral TRIPS- plus” agreement with a core objective of “circumventing international organizations in charge of intellectualproperty”. While the US insisted on avoiding collaboration with any international organization, the Japanese made clear that the intent of the agreement was to be binding upon third party nations. In order to make it even more legitimate, US and Japan recruited Jordan and Morocco to the negotiating table. After a series of draft text leaks in 2008, 2009 and 2010, the negotiating parties published an official version of the then draft onApril 20th 2010. Anew consolidated draft text, reflecting the outcome of the final (Tokyo) round of negotiations was released on October 6 2010. The final text was released on 15th November 2010.
In subsequent TRIPS council meeting, India made an intervention regarding the TRIPS plus nature of the ACTA, pointing to the now publicly available draft of the ACTA. While reserving the final judgment on the TRIPS compliancy of the Agreement till the final version is released, India rescinded the Council of its concerns voiced earlier and pointed to several concerns in the current draft version.
ACTA was ostensibly designed to establish common international standards for intellectual property rights enforcement. It covers digital copyright infringement as well as counterfeiting. ACTA will, supporters argue, extend high standards of protection for intellectual property around the globe and make it easier for right holders to enforce standards across borders.
TheACTAnegotiations have spurred debates among various stake holder groups which include intellectual property-based industries; Internet Service Providers; and public health, consumer rights, and civil liberties groups. There are concerns about scope, transparency and inclusiveness of negotiations. Various groups also have expressed concerns about the implications of the ACTA for trade in legitimate goods, consumer privacy and free flow of information. With the existence of World Trade Organization (WTO) Agreement on Trade Related Aspects of
Intellectual Property Rights and other international agreements on IPR, some question of rationale behind creating a new agreement to combat counterfeiting and piracy2. In addition, there is a speculation about the implications of the ACTAfor future efforts to address IPR protection and enforcement issues through trade policy.
But the opponents to the agreement, who include the Electronic Frontier Foundation and the Open Rights Group, maintain that the agreement threatens privacy, freedom of speech and will hinder innovation through harsh criminalmeasures. Others worryACTAwill allow border agents to check people’s laptops for copyrighted material and allow media companies to claim damages for lost sales for each illegal download.
ACTA imply counterfeiting and digital copyright infringement are the same. They are not. Fake branded electrical goods present a real risk to consumers who trust the product to be as safe and reliable as the real thing. In contrast, digital copyright infringement does not endanger people in the same way- if at all. So in addition to protecting right holders, there are further justifications for regulating counterfeit goods over and above justifications for digital. IP law is about finding a balance between the competing interests of the rights holder and the public. The danger of equating counterfeiting and digital copyright infringement is that the balance tipped towards the rights holder and away from public. Unlike discussions about counterfeiting, the debate about the digital copyright enforcement requires voices concerned with freedom of speech and privacy.
Critics view the ACTA as potentially duplicative, arguing that the proposed elements of the ACTA suggest significant overlap with the WIPO Internet Treaties and the WIPO TRIPS Agreement.
STOP ONLINE PIRACYACT: (SOPA)
In the U.S., SOPA was introduced in the House of Representatives in October 2011 and quickly gained bipartisan support from dozens of people in Congress and a diverse coalition of groups including labour unions and the powerful pro-business U.S. Chamber of Commerce.
Similar legislation, the Protect Intellectual PropertyAct (PIPA) gained support in the US Senate. In the international arena, the ACTA was negotiated and signed by the US, EU member states and nine other countries: it called upon signatories to take intrusive action against websites deemed to violate patent or copyright protections.3
Provisions in all three measures would have required Internet Service Providers (ISP’s) to take steps to block access to websites providing unauthorized use of copyrighted material. The original versions of SOPAand PIPAstipulated that ISP’s should use domain-name filtering technologies to block access to such sites. Some ISP’s and members of the Internet technical community raised serious objections to the approach enhanced by bills. They worried about the feasibilityand the cost of implementing filtering technologies and worried that, once installed, such “censor ware” would be used not just to fight piracy but-in many countries – -to suppress freedom of speech and block innovative services. Even worse, they argued, the language of the proposed legislation was so open ended and vague that it could be used to undermine the current fundamental rule in the US (section 230 of the 1996 Telecommunication Act): it includes a clause exempting ISP’s and websites from liability for illegal content disseminated over their networks.
What troubled many bloggers most was a concern that the draft legislation and the ACTA Agreement implied that protecting copyright owners profit was more important than protecting Internet user’s privacy.All these measures called for the use of mechanisms to detect copyright violation (whichmight include techniques such as “deep-packet inspection”) that would involve monitoring individual internet users browsing on the web.
As these draft bills were being debated in congress and in Canada, ISP’s and other parts of the traditional Internet industry deployed the usual tools of political lobbying to seek changes to the legislation, but they were not making significant head away. In contrast, the Internet user community was starting to become aware of the profound potential consequences of the proposals and bloggers weighed in. Many people contended that if SOPA, PIPA, C-11, and ACTAhad been in force ten years ago, the world would never have seen such websites such as Face book, YouTube or Wikipedia. Such websites based on user generated content would have had to ensure that none of the content, on their site was copyrighted before it could be posted. That would have been a hurdle impossible for these innovations to clear.
Critics in the blogosphere also objected4 to provisions in the draft bills and the trade agreement that, in their view, were liable to eliminate the well-established principle of “fair use” of copyrighted material in the digital realm.
With traditionalinternet industrylobbyists floundering, the user communityand bloggers modified new means of political persuasion, some of which proved surprisingly effective.
The most publicized and most global example was the self imposed 24 hour blackout on January 16 of the English version of Wikipedia. Conceived by Wikipedia founder Jimmy Wales as a way to dramatize the impact that SOPA might have on sites that depend on user generated content, notably on not-for-profit sites like Wikipedia, it caught media and popular attention globally. Wales estimates that more than 160 million Wikipedia users saw the anti- SOPA message that day, and hundreds of thousands of them took some action to express their opposition to the legislation5. An estimated 7000 other sites also shut down for the day to protest. Online petitions against SOPAgathered more than seven million signatures, and online campaigns were organized to encourage boycotts of companies supporting SOPA.
Very soon, members of Congress who had co-sponsored SOPA and PIPA started realizing that the bills were not as some had been led to believe, non controversial measures with broad-based support. Instead they learned that many of the people who had voted for them in their last election felt so strongly on this issue that they would vote differently in the next election. Quickly, dozens of congressional co-sponsors sought to have their names removed from the bill.
One blog, Reddit, mobilized its users to target specific members of Congress who were supporting SOPAor trying to decide whether to do so. Representative Lamar Smith, sponsor of SOPA, and Paul Ryan, a prominent Republican leader in the house of Representatives, both discovered that hundreds of people from around the country who opposed SOPA had sent ten of thousands of dollars in campaign contributions to the campaign chests of their previously underdog opponents. In Canada, Internet activists took a different and even more unconventional approach. The hactivist group anonymous posted a video declaring Public Safety Minister Vic Toews ” a joke of the internet” ( and revealed the name of his mistress) as retribution: Toews and other Conservative government ministers supported C-11 and similar legislation designed to monitor internet traffic intrusively in the name of fighting crime.
In countries across Europe, activists used the internet to educate internet users about the Anti-Counterfeiting Trade Agreement (ACTA) and to put pressure on national parliaments and the European Parliament to prevent or delay ratification of the agreement. Many of the early and most effective protests were held in Poland after the Polish Government announced on January 19 that it would sign the treaty on January 26. Two days later a number of government websites including the Prime Minister’s and President’s were shut down by over- whelming denial of service attacks. By the end of the week, tens of thousands of protestors- mobilized by social media had taken to the streets of several Polish cities and more than 1.7million Poles had sent e-mail messages to members of the Polish Parliament expressing their opposition to ACTA. In mid-February, Prime Minister Donald Tusk announced that the Poland would not ratify the treaty. Furthermore, he wrote to members of the European Parliament affiliated with his political party to urge them to oppose ratification of ACTA. Similarly, the Slovene government, faced withstreet protests and outraged bloggers, announced that it will not ratify the agreement. Bulgaria and Czech Republic intend to delay ratification pending further analysis.
The ability of the Internet to give groups of average citizens the power to pressure individual lawmakers in this way is a new factor in our political systems. Nigel Cameron, the founder of the center for Policies on Emerging Technologies, has coined the term’exo-politics” to describe how the Internet is enabling new players to influence the political debate outside ofthe methods traditionally used by lobbyists6 . By using socialmedia to organize street protests, “flashmobs” and “moneybombs” of campaign contributions, by creating online petitions and videos with potential to go viral and by deploying denial-of-service attacks and a variety of “hactivism” techniques, groups as diverse as the Tea Party, Americans Elect, MoveOn.org, Anonymous and Occupy Wall Street have made their voices and demands heard in new ways. These tactics seem to be drawing previously unengaged citizens into the political process.
WIPO’S ROLE AND RESPONSE
1. Expand the investment of creating nations through the utilization of WIPONET and different means for:
• access to IP data
• Participation in worldwide approach plan
• Opportunities to utilize their IP holdings within electronic Commerce
2. Section into power of the WCT and the WPPT before December 2001.
3. Advertise alteration of the worldwide administrative system to encourage electronic trade through:
• the growth of the standards of the WPPT to varying media exhibitions
• the adjustment of supporters’ rights to the computerized time
• advance towards a conceivable global instrument on the insurance of databases
4. Execute the proposals of the Report of the WIPO Domain Name Process and seek after the accomplishment ofsimilaritybetweenidentifiers in the genuine and virtual planets through the foundation of guidelines for shared admiration and the disposal of inconsistencies between the area name framework and intellectual property rights.
5. Advertise alteration of the institutional structure for encouraging the misuse ofintellectual property in general society enthusiasm toward a worldwide economy and on a worldwide medium through managerial coordination and, where wanted by clients, the execution of functional frameworks in appreciation of:
• the interoperabilityand interconnection ofelectronic copyright administration frameworks and the metadata of such frameworks
• web authorizing of the computerized articulation of social legacy
• online organization of IP question
6. Present and create online systems for the recording and organization of universal requisitions for the PCT, the Madrid System and the Hague Agreement at the most punctual conceivable date.
7. Study and, where fitting, react in an auspicious and compelling way to the requirement for down to earth measures intended to enhance the administration of social and other advanced holdings at the global level by, for instance, exploring the allure and adequacy of:
• model methods and structures for worldwide authorizing of computerized stakes
• authentication of electronic archives
• the presentation of a method for the accreditation of sites for consistence with fitting intellectual property gauges and techniques.
8. Concentrate on anyviable developing intellectual property issues identified with electronic business and, where proper, create standards in connection to such issues
9. Coordinate with other worldwide associations in the definition of fitting global positions on even issues influencing IP, specifically: legitimacyofelectronic contracts and jurisdiction
WIPO INTERNET TREATIES
The field of copyright and related rights has stretched tremendously with the mechanical advancement of the last a few decades, which has brought better approaches for spreading manifestations by such types of overall correspondence as satellite telecast and minimized circles. Scattering of works through the Internet is however the most recent advancement which brings up new issues concerning copyright.
WIPO is profoundly included in the progressing universal open deliberation to shape new guidelines for copyright security in the internet. The association controls the WIPO Copyright Treaty and the WIPO Performances and Phonogram Treaty (referred to together as the “Web Treaties”), which set down worldwide standards pointed at averting unapproved access to and utilization of imaginative chips away at the Internet or other computerized systems.
The WCT manages security for writers of abstract and imaginative lives up to expectations, for example, works and computer programs; unique databases; musical meets expectations; varying media meets expectations; works of compelling artwork and photos; although the WPPT manages insurance for writers privileges of entertainers and makers of phonograms.
The reason for the two arrangements is to overhaul and supplement the real existing WIPO bargains on copyright and related rights, fundamentally to react to improvements in technology and in the commercial center. Since the Berne Convention and the Rome Convention were received or finally reconsidered more than a quarter century prior, new sorts of lives up to expectations, new markets, and new techniques for utilization and spread have developed. In addition to everything else, both the WCT and the WPPT address the difficulties postured by today’s advanced advances, specifically the spread of secured material over computerized systems, for example, the Internet. Consequently, they are regularly alluded to as the “Web bargains.”
Both settlements oblige nations to give a system of essential rights, permitting inventors to control and/or be adjusted for the different courses in which their manifestations are utilized and delighted in by others. Above all, the bargains guarantee that the managers of those rights will keep on being satisfactorily and successfully ensured when their meets expectations are scattered through new advances and interchanges frameworks, for example, the Internet. The arrangements accordingly illuminate that current rights keep on applying in the nature. They likewise make new online rights. To keep up a reasonable parity of diversions between the holders of rights and the overall population, the bargains further clear up that nations have sensible adaptability in building special cases or constraints to rights in the nature’s turf. Nations might, in fitting circumstances, award special cases for utilization considered to be in the general population investment, for example, for non-benefit instructive and exploration purposes.
The bargains additionally oblige nations to give the rights themselves, as well as two sorts of mechanical aides to the rights. These are expected to guarantee that right holders can adequately utilize technology to secure their rights and to permit their works on the web. The primary, known as the “opposition to circumvention” procurement, handles the issue of “hacking”: it obliges nations to give sufficient lawfulassurance and compelling cures against the circumvention of innovative measures, (for example, encryption) utilized by right holders to ensure their rights. The second kind of mechanicalaides protects the unwavering qualityand trustworthiness of the online commercial center by obliging nations to preclude the intentional adjustment or erasure of electronic “rights administration information”: that is, information which goes with any ensured material, and which recognizes the work, its makers, entertainer, or holder, and the terms and conditions for its utilization.
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