About the Author:Anjana Gopinath,Content WriterFinal year student, B.A. LL. B. (Hons.)Symbiosis Law School, Pune.
With the emergence and vast development of the internet and the World Wide Web, information on a wide range of subjects has been made available at the tip of an individual’s fingers. Additionally, with the comfort of obtaining and storing information through the popular method of downloading, there has been a significant leap in the transfer of digital information across the globe. Even though downloads have been seen as a blessing, it has also been an issue and has created concerns concerning copyright. This article aims to provide an insight on the issue downloading and its impact on copyright. The author also provides suggestions for reform and a conclusion for the same.
Key Words: Copyright, author, internet, downloads, legislations.
Procuring information and the dissemination of the same has become faster than ever, with the publications of authors being made available on various e-platforms. On the other hand, Copyright laws aim at protecting the original works of authors from its unauthorised use, give them legal recognition for the same, and also facilitates monetary gain through it. Copyright laws seek to encourage creativity, and reward the authors for their original work. But with options like downloading available with digital information carrying copyrighted work, the protection of the same cannot be guaranteed; as once downloaded, the information can be stored, printed, and even transferred to other people, without even the copyright-owner’s consent or knowledge. With this, copying of information becomes common, thereby diluting the whole purpose and aim of Copyright legislations, and creating a considerable inflow of copyright infringers.
Copyright in the Digital era and the Issue of Downloading:
The Copyright Protection in India:
The Copyright Act of 1957 is the legislation that covers copyright protection in India. The works that are protected under the Act include original literary, dramatic, musical and artistic works; cinematograph films as well as sound recordings. The 1957 Act protects the Economic, as well as the moral rights of the author of an original work. The economic rights of the author regarding literary, dramatic and musical works under Section 14 of the Act includes the right to reproduce, issue copies, perform, translate or to make an adaptation of the same. Any person other than the author, who does the above-mentioned acts without the consent, license or assignment from the author, is said to have infringed the copyright. However, whether the same legislation can cater to the needs and enforcement of digital copyright concerns is what has to be analysed, particularly when the transfer of information in the present times are mostly done through electronic sources.
Downloading in the Digital Era and Copyright Infringement:
The role of individuals in the digital era has become crucial regarding the enforcement of Intellectual Property, as technology has increased the capability of copying, producing and well as distributing information. E-information has become a part of a regular lifestyle, and the handling of the same as gathered copyright concerns. A significant number of these concerns and infringement arise out of the misconception that every information available on the internet is free to use. However, it is important to understand that a material can be used freely, only if the federal government has created the information, or the copyright has been expired, or if the copyright has been abandoned by the copyright-holder. Any copyrighted material uploaded on the internet does not automatically be placed in the public domain. For it to be used, without being treated as an infringement, the consent of or license from the author is mandatory.
Currently, a large number of copyrighted materials are available for free downloads on the World Wide Web with the permission of the author. However, some of them may be made available for downloads without the consent of the author. The latter is a case of copyright infringement. Additionally, even if a download requires permission, once downloaded, it is available for use. The subsequent use of the downloaded material cannot be limited, as the same is difficult to be monitored. Printed materials of the downloaded document can be used by the person who downloaded the same and can be made available to a large number of people, who may not have secured the consent of the copyright owner. Furthermore, with wide availability of software which creates the possibility of loading information to more than one computer, the chance of infringement increases, and it also breaches license agreements that limits the usage to a single computer.
Nevertheless, it is pertinent to understand that not all downloads and the subsequent ‘unauthorized’ use can be termed as infringements. Taking note of the present situation of the ongoing COVID-19 pandemic, and the shift of education media from off-line to on-line itself has increased the transfer of reading/study materials to students through various digital platforms. Scanned copies of textbooks, research papers and articles are made available to the students through the online media. Students can access the same by simply downloading it at the comfort of their house. But the question is, whether these transfers of the copyrighted material is an infringement or whether it is a ‘fair use’.
2. Fair Use of Copyrighted Material:
Section 52 of the Copyright Act deals with the provision of ‘fair use’. Section 52(1)(i) permits explicitly certain activities of an educational institution. Under the said provision, the following acts shall not constitute an infringement of copyright, i.e., the reproduction of any work by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an examination; or answers to such questions.
Here, it is important to discuss the judgement given in the case titled as The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors., which is also known as the DU Photocopying Case. It was held by the Delhi High Court that “…the utilization of the copyrighted work would be fair use to the extent justified for the purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative… so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use, i.e. make the learner understand what is intended to be understood…” Thus, according to the said decision, the law does not limit the educational use of copyrighted material to a specific quantity and also permits the use of so much of the copyrighted information which is required to teach a student. Additionally, with the interpretation of Section 52(1)(i) of the Copyright Act and also citing section 13(2) of the General Clauses Act, 1897, the Court held that making of multiple copies of a work by teachers or students is contemplated under this provision, and would not amount to copyright infringement. Consequently, if the educational instruction requires a large part of a particular copyrighted material to be imparted to the students, the same would not be considered as an infringement. Thus, if the instructional/educational material which is copyrighted is transferred for the use of education, the same if downloaded would not amount to an infringement, irrespective of whether the transfer has occurred off-line or on-line, as it is part of the classroom-activity.
Therefore, it can be concluded that as long as downloads and information transfers are made for, and only for education, the existing case-laws protect the same. However, it is important to restrict this information to the students only and should be available only to them.
3. Download of a single copy:
The act of downloading concerning a copyrighted work can be primarily discussed under Section 51(a)(i) of the Copyright Act. However, it is important to interpret Section 51(b)(iv) of the Act. The latter section permits the import of a single copy of a work for a person’s private and domestic use. Under the light of the said provision, it can be stated that the act of downloading a single copy of a copyrighted work held in a server outside India would not amount to an infringement, as it would be a protected act, falling within the scope of Section 51(b)(iv). Here, the emphasis is given to the word ‘single’ copy, and for ‘private and domestic use’. However, once again, there is no provision to regulate the flow of the copyrighted material once it is available to an individual, and the courts are yet to decide on such an issue.
Suggestions and Conclusion:
There is an absence of Indian case law that expressly discusses the liability of end-users for downloading infringing content. Thus, one cannot significantly discuss the law based on the scope of downloadability, but can only interpret the legality of the usage through fair use and other provisions of the Copyright Act and case-laws addressing copyright infringement. However, it is free of doubt that extensive permission to download a copyrighted work of a creator is violative of his rights and protections guaranteed under the Copyright Act. Updated legislation is necessary with the changing circumstances and developing technology. Protection measures are required to be taken to prevent potential infringement of copyright through downloads. Some suggestions that can be made are stated as follows:
Every download must first show a warning in a short and precise message. The warning may state that “This is copyrighted material. Any transfer of the same to another individual/association/entity without the consent of the author shall amount to an infringement of copyright and shall attract a legal consequence.”
The Copyright law may introduce a provision prohibiting the maintenance of websites that allow the free download of copyrighted material which do not have the consent/license of the concerned author. Every website which has the license of the author to publish the copyrighted material, and makes it available for free download, must be made to mandatorily provide the details of the license obtained from the author. In case a particular website does not provide the details of the same, an e-portal of the IP department of the government shall be made available to the public, to raise complaints and report against the maintenance of such websites and their content. Authors who know of such infringement may also indicate the action on the same platform. Once a complaint has been raised, a section of the IP department and officers could investigate the same and take appropriate legal actions against the owners of the website.
Importance should be given to the practice of “view-only documents”. Downloads are beneficial considering the comfort it provides in copy-pasting the information, as well as to transfer the same to another person. View only documents must become a practice in transferring information, as it may reduce the direct copying of information, and will also play a significant role in blocking unauthorized second or subsequent transfers.
Yet another vital aspect towards the adequate protection of Intellectual property, is the awareness to be given regarding the importance of protecting IP. Without knowing the importance of the protection of IP, it is nearly impossible to protect it with every development that happens. The importance of IP and its protection must be taught in all undergraduate and diploma programmes, as every field provides the opportunity of new creations and innovation.
Concluding, it can be stated that it might be difficult for legislation to be continuously updated according to the development of technology. However, it is important that measures are taken to amend the existing laws to cope up with the legal issues that technology creates so that the interests of people holding the rights concerning IP is protected.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.
Iranna M Shettar, Copyright Issues in Digital Media, INTERNATIONAL CONFERENCE ON KNOWLEDGE FOR ALL : ROLE OF LIBRARIES AND INFORMATION CENTRES, (Jun,2008).
Chennupati Kondand Ramaiah, Copyright Related Issues in Electronic Books, SCHOLARLY COMMUNICATION & INTELLECTUAL PROPERTY RIGHTS (2014).
Ishan Sambhar, Concept Of Fair Use And Fair Dealing In Copyright, MONDAQ, (May, 2020).
Section 52(1)(i) of the Copyright Act: “in the course of instruction”, (2012).
Nandita Saikia, The Possible Legality of Downloading in India (2010).
Banerjee A., Contemporary Challenges of Online Copyright Enforcement in India, In: Liu KC., Racherla U. (eds) Innovation, Economic Development, and Intellectual Property in India and China (2019).
The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. (2016) 160 DRJ (SN) 678.