IPR And Enforcement Mechanism: Problem And Prospects

"Determine that things can and shall be done and then we shall find the way" - Abraham
Lincoln

The objective of IPR is to give the greatest good to greatest number. In other words this
approach states that these rights induce people to behave in the ways that increase
socially valuable goods and services and distribute these goods and services in the
fashion that maximizes the net profit that people reap from them. The distinctive
characteristics of most intellectual products are that they are easily replicated
eg.Copyright and this can be easily done when a person is working in digital
environment. Digital environment is intrinsically different from print and mass media.
The digital environment can be characterized as ephemeral and ethereal. In the words of
Benkler," There are three attributes of information society:

1. Plasticity
2. Transmissibility
3. Processibility

The plasticity, transmissibility and processibility are unique to digital environment. These
characteristics are the product of electric impulses of binary language of 0's and 1's.At
best, they are symbols and therefore intangibles. These symbols are converted in human
readable forms and also know no borders. Written and printed texts, sounds, speech and
pictures can be reduced to 0's and 1's and once reduced they become signals and hence
vulnerable to mutations by the use for multimedia, become capable of being combined,
separated or manipulated in any or all forms of expressions in ways which were never
thought of. However it is not the intangibility alone which is problematic because
Common Law incorporates incorporeal rights. The problem is intangibility plus
plasticibility, transmissibility and processibility which require law and legal institutions
for remapping of the contours of digital environment.

The digital environment offers a wide range of possibilities to all stake holders. In
particular, the technical development has moved the internet increasingly from a
centralized structure where the users utilizes those contents offered by website to one
where more powerful devices with cheaper connectivity and faster transmission speeds,
offer consumers access to richer online contents. The advent of broadband promised
ubiquitous access to all types of intellectual property in a manner previously not possible.
This permits not only a greater dissemination of such Intellectual Property, but also
stimulates consumer demands for the services that enabled access. The problem arises
just after the contents take the digital form and are put on internet. There are some
inherent weaknesses associated with the management of digital rights as the same being
prone to violation by use of technology itself. There have been several efforts to
overcome the problem and find a way for the efficient management and the protection of
digital rights. It has rightly been recognized that digital rights neither be protected nor be
enforced unless solution for the problem is sought in the technology itself.
As with the ever developing technological advancement the number of people using
internet services is increasing so is the malpractices to negate the interests of IPR and to
reproduce the contents available thereon. The most common act of violation is observed
as piracy, which has not earlier been specifically defined in the Copyright Act 1957 or in
any other legislation dealing in Intellectual Property Rights. Even IT Act, 2000 does not
provide specific provision dealing with piracy.

This paper is an attempt to analyze the Intellectual Property violation with special
reference to digital rights management. Copyright and its related rights are essential to
human creativity, by giving creators incentives in the form of recognition and fair
economic rewards. Under this system of rights, creators are assured that their works can
be disseminated without fear of unauthorized copying or piracy. This in turn helps
increased access to the work and further enhances enjoyment of culture, knowledge and
entertainment all over the world. It is recognized worldwide that copyright piracy is a
serious crime which not only adversely affects the creative potential of society by
denying the creators their legitimate dues, but also causes economic losses to all those
who had invested their money in bringing out copyrighted material in various forms for
use by the end users.

With advancement in technology new techniques have been developed to control the
internet piracy on copyrighted contents. Digital Rights Management is an impressive
attempt amongst such techniques. DRM is primarily a process of insertion of particulars
of the intellectual property into it. And, therefore it is an aid to curb the piracy practices.
Digital Rights and Information Management is usually construed as protection of
copyright and controlling internet piracy but our submission identifies DRM as a
technology used to identify, describe, distribute and trading of contents and regulation
and enforcement policies on digital media. Information stored on electronic form is
cheaper, easy to store, retrieve and speedier to communicate. These advantages of Web
have attracted many people and easy access to information on the website may result in
conflict with their copyright interests.

Globalization has forced the copyright issues to forefront because large number of
copyright products is traded internationally. But the challenge imposed by the
development and growth of the internet to the existing copyright laws is immense. There
are several issues to be discussed:
1. What is copyrighted on contents available on Internet?
2. How should one decide where the copyright infringement has taken place?
3. Who should be held liable for copyright infringement and how?
4. How the balance is to be achieved in protecting the works of the author and the usage
and awareness of works of such authors?
5. How does the DRM help in the copyright protection and enforcement?

I. Copyright on Internet
If we analyze the issue in context of India, it requires a brief discussion of provisions
dealing in copyright and particularly in cyber piracy. Anything that can fall within ambit
and scope of definition as provide in Section 13 of Copyright Act, 1957 is a subject
matter of Copyright. Intricacies of contents available on the internet being intermingled
in nature have composition of literary, artistic, dramatic, cinematograph, musical and
sound recording. Seen from the laws of Copyright, the Information Technology Act 2000
does not lay down any concrete frame work for dealing with specific Copyright
violations on the internet. The inability of the Act to address copyright issues in proper
detailed manner has been criticized as one of its most glaring lacunas. However there are
provisions that can be construed to be seeking to address some aspects of copyrights as is
obvious from Section 43 of the Act which relates to penalty for damage to computer,
computer system, etc. Hence while generally, the issue of copyright violation comes
under the purview of the Copyright Act, which will also cover copyright violations on the
Internet. But looking at the provisions of the IT Act, it can be said that there has been
some piecemeal effort made to deal with the possible copyright infringement on the
Internet. The text of Section 43 the Act of provides as follows: "If any person without
permission of the owner or any other person who is in charge of a computer, computer
system or computer network, —

(b) downloads, copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data held or
stored in any removable storage medium;……….he shall be liable to pay damages by
way of compensation not exceeding one crore rupees to the person so affected."

Article 10 of the TRIPS agreement and Arts. 4 and 5 of WCT recognize that not only
computer software is protected, but also content of web pages are protected under the
treaty, if they are original. Thus, the unique underlying design of a webpage and its
contents, including links, original texts, graphics, audio etc. and all other unique elements
that make up original nature of material is copyrighted.

II. Copyright Infringement

The second issue requires consideration that internet has made it possible to replace
traditional paper based communications by electronically based communications which
does not know physical or geographical boundaries. The efficiency and speed brought by
this technology has made it a good alternative. It is still in its evolutionary process and
only future will tell us where it will lead us. The existing copyright laws are territorial in
nature and the standards of protection embodied in international conventions leaves room
for national legislative determinations and therefore acts, which may constitute
infringement in one country but may not constitute infringement in another. Thus the first
important goal of international community should be to harmonize their respective
Intellectual Property Laws. International community should seriously apply its resources
to establish an international tribunal like Copyright Management Office or some dispute
settlement body to decide matters of copyright infringement having international tinge.
The next phase of it should be to take help of private international law. Now it can be
said with clarity that internet has certainly fastened the entire process of globalization. If
this jurisdiction issue is not settled and a liberal stand is not taken on issue like
sovereignty, then this internet revolution as the "information gateway of the future as a
misnomer of the times to come".
III. Liability for Copyright Infringement
The explosion of the internet as a vast decentralized non- geographical communication
and commercial network has presented much unique e-governance, especially concerning
regulation through law. It has become obvious that a crucial node of power for the
purposes of law and governance is the Internet Service Provider (ISP). Uniquely placed
in the decentralized interactive networks, ISPs influence conduct and enforce cultural
norms or laws. The question, then is, whether to enact a whole new system of laws that
deal with ISP in particular or to modify the existing laws. The enactment of a new system
of laws does have its own supporters. However, this may sometimes be in conflict with
the interests of the internet technology and to certain extent may restrict to the right of
freedom of information

In Indian context, the Intellectual property rights are dealt under the provision of Indian
Copyright Act, 1957. The Act does not have any section dealing with piracy of computer
software from the internet. Though the Act, when it comes to software takes care of
offline piracy, it fails when it has to deal with online piracy. The Information Technology
Act, 2000 has made significant amendments to other such as IPC, Indian Evidence Act,
and Criminal Procedure Code. However, one area that existing principles of copyright
may be applied to the internet through analogy, it is true, the medium does pose new
challenges which analogy may be to deal with. Thus, we strongly recommend the
following amendments in (Copyright Act, 1957):

(1) Section 2(ff) defining "communication to the public" should be amended to include
an explanation to take account of the internet.
(2) Section 2(ffc), which defines what is meant by software, to take into account web
pages also.
(3) Section 2(hh) which defines the term duplicating equipment should include, compact
disc writers, floppy drivers and electronic copying of the internet.
(4) To incorporate the existence of an implied licenses under the defenses available to
users.
(5) To increase the quantum of fine that can be imposed on the violators of the copyright.
(6) To tighten the enforcement mechanisms to take into account the internet.

As far as we are concerned, ISPs should not out rightly be held liable for two basic
reasons:
(1) To promote e-commerce and various transactions taking place electronically.
(2) To pave the way towards globalization, the need of time.

In order to favor ISPs the appropriate approach should be to test technological

perspective of reasonable man to determine ISP's liability. The suggestions may include
that ISPs should internalize losses caused by their existence as a cost of doing business.
This encourages enterprise (ISPs) to take precaution against relevant losses or raise
compensation for victim by spreading those costs over a broad segment of society. Next
to this point, we would like to give a new dimension to extend the scope of the section 79
of IT Act, 2000 especially the phrase "DUE DILLIGENCE" as following:
(1) Posting of notices, warning to the potential users of the site not to use internet adverse
to the interests of the creator of the intellectual property.
(2) A periodic reviewing of site and bulletin boards with a view to monitor violating
activities at the end of users.

IV. Balance of Interests

The forthcoming issue is to decide the balance between the author's rights and that of
users' rights to information. There are four criteria to be considered in determining the
availability of the fair use doctrine. They are:
1. The purpose and character of the defendant's use of the allegedly infringed work,
including whether such use is of a commercial nature or is for non-profit educational
purpose.
2. The nature of copyrighted work.
3. The amount and the substantiality of the portion used by the defendant in relation to
the copyrighted work as a whole, and
4. The effect of the use upon the potential market for, or the value of copyrighted work.

V. Enforcement of Copyright through technology

Access to knowledge and cultural goods is critical to ensure full participation of the
public in political and cultural life and to ensure benefit to them from any scientific and
technological advancement. The copyright system seeks to promote the efficient
dissemination of knowledge in the public domain by maintaining a balance between
enabling rewards to the producers of knowledge on the one hand and access to these
copyrighted goods for public, on the other. It is therefore critical that laws pertaining to
copyright in any country be drafted in a manner that best ensures an ideal balance
between public and private interest.

The copyright laws provide various provisions against infringement of copyright material
but there is a need to enquire whether the objectives behind the enactment of such
provisions are met or not? Digital Rights Information Management is a preventive
measure to safeguard the commercial interests of the author as well as of the ICT. But,
mere prevention would not lead to actual protection against violation of the copyright,
unless the rights are not enforced in case of disputes relating to copyright infringement.
DRM has a great significance in litigation process as it can be used as an evidence to
substantiate the claim of copyright. Earlier, it was not an easy task to grill the infringers,
simply because, it was almost impossible to segregate or identify the content claimed as
being infringed. With the aid of DRM system it becomes possible to hold one responsible
for infringement, as being in possession of infringing material.

This paper aims to illustrate and analyze the technologies and tools available for DRIM
(Digital Rights Information Management) and further objective is to enquire into the
efficacy of the legislation to ensure its effective implementation and enforcement
particularly in Indian context.

The obvious phenomena of DRM are executed by embedding and integrating the
information of the author of the work, its owner and terms of use in the work itself by
way of encryption, encapsulation, watermarking, encoding etc.. The DRM system
evolved with the CSS (Computerized Scrambling System) way back in 1996. This system
relied on simple encryption algorithm requiring license agreement that restricted the
inclusion of features such as digital outputs that could be used to extract high quality
digital copies of the film in their players. Micro Soft Vista contains a DRM system called
the protected media path , which contains the protected video path (PVP).PVP can
encrypt information during transmission or the graphics card , which makes it more
difficult to make unauthorized recordings. AACS is a DRM system for HDDVD and Blu-
Ray discs developed by the AACS licensing administrator. The broadband Flag concept
was developed by Fox Broad casting in 2001 and was supported by the MPAA & FCC.
Many online music stores employ DRM to restrict usage of music purchased and
downloaded online.

The another application of DRM is the Enterprise Digital Right Management(EDRM) to

control of access to incorporate documents such as MS word, PDF etc. EDRM is
generally intended to prevent unauthorized use of proprietary usage. EDRM typically
integrates with contents and their arrangement. Digital watermarks are unobtrusive
features of media that are added during production or distribution. A digital watermark
involves Data Steganographically embedded within the audio or video data. Watermarks
can be used for different purposes that may include: For recording the Copyright owner,
for recording the distributor, for Recording the distribution claim and for identifying the
purchase of the music. Watermarks are not complete DRM mechanism in their own but
are used as a part of a system for DRM.

Recommendations:
The overall economic scenario of our country is not very sound as indices are indicative
of that. The prime concern of the country is to ensure the balance of the commerce as
well as of the intending users of Intellectual property. If a summary is conducted to parse
the status of individual, be it be their dealing in creation of Intellectual property or in its
trading and also the people who are at the target for their consumption then the picture
that comes in mind is none else but is a true story narrating plight of the citizens.
.Probably this might have been the reason to not to give full effect to the policies
followed by developed countries having altogether different circumstances prevailing
there. We recommend as follows:

(1) There is well known concept of "parallel importation" providing a country to import
the intellectual property at cheapest rate. The expenses associated with the creation of
intellectual property in India to make it marketable are still cheaper than any other part of
the world, further we are not well equipped with the devices used to comply with DRM
and further no initiatives have been made by the countries.

(2) Technology involved to comply with the DRIM is expensive and not affordable for
the people trading particularly in small scale industries nor would the user be able to pay
the enhanced price due to adaptations of DRM techniques. Therefore as a consequence
the vital interest of the people would greatly be adverse.
(3) India, if complies with the international treaties as WCT and WPPT etc. or other
conventions detrimental to its own interest, would ultimately lag behind in the
development. Therefore, no strict adherence to DRM policies can be implemented into by
way of existing legislation but still there is a need to have a glance on the provisions
governing and regulating Intellectual Property Rights in view of advancing technology.

(4) Having studied the entire scenario in Indian perspective, fair dealing emerges as a
great defense for the promotion of Intellectual Property and to make people enrich in
their knowledge. India is a country where people cannot pay even for the basic expenses
of the education as tuition fees and therefore it is not fair to expect them to spend for
expensive books or other intellectual properties as their prices are rising exorbitantly,
particularly the online research material or the books that can be made available only at
educational institutions or the public libraries. Adopting DRM would be a difficult task as
it is not easy to distinguish the nature of use of intellectual property. The copyright law
provides the concept of public domain which in turn provides that after the expiry of the
term the work would fall in public domain but with DRM it is not possible.

(5) Authorities responsible to adjudicate the claims of intellectual property must be well
trained to handle the cases efficiently to ensure fair use of intellectual property.

(6) Enforcement agencies must get incentives for their efforts to monitor and surveillance
the suspicious use of intellectual property by awarding them a share of benefits to
encourage them to work well.

(7) Heavy fine must be imposed on infringer, a database of the violators has to be
maintained and reviewed periodically and be publicly issued to discourage and harass the
violators.

(8) Government should frame such law by which the development, production and
distribution or sales of DRM infringement tool and software become too costly to be used
as its use cannot be completely prevented due to the very versatile nature of technology.

(9) Price of the intellectual property should be regulated in a manner to keep it low in
cost than the value of expenses likely to be incurred to reproduce it in other way round.

(10) Some DRM technique and tool should be developed in such a way that they can
provide more security and which can comprehensively check at what extent or level the
user have the access.

(11) Watermark is not a good DRM protection tool, because as in case of paper based
intellectual property, where material can be reproduced by typing the contents manually
similarly in case of digitized intellectual property it can be removed by some tool,
however after removal of watermark the quality of work decreases but still it may be
used.
(12) DRM should be implemented to cover only those intellectual properties which are
very sensitive or in which there is a lot of money or effort is involved in its development.

(13) Government should formulate policies to encourage for the development of DRM
tools and technique.

(14) Awareness of intellectual property rights as well for liability in case of violation
should be promoted by educating general public, market players and users.

(15) For scientific development and for study purposes the copyright material must be
made available free or with minimal charges.

(16) Enforcement agencies must ensure that the creator is getting due benefits, but public
interest must not be ignored.

(17) Use of DRM protected material should be promoted and appreciated. Static
information in registry of software is to be incorporated so as in case of any change in it,
inbuilt software stops working or does not allow the contents to display.

Conclusion
The analysis in this paper brings forth the fact there is undoubtedly a very strong regime
that protects computer software, off-line, but this existing regime fails miserably when
faced with the problems that the internet throws up. The issue that arises is whether one
wants to extend the existing intellectual property to the internet or let the internet find the
solution for itself, as it has in certain cases, with concepts like shareware, copylefting etc.
Alternately, should there be a new system of law that should govern intellectual property
on the internet?

The question then is whether to enact a whole new system of laws that deal with internet
in particular or to modify the existing regime. The enactment of new system of laws does
has its supporters, especially among the software lobby, but it poses certain problems. It
would also mean the creation of whole new system to enforce these laws. Moreover, this
would lead to the destruction of the very concept for which the internet has been created,
that is, the freedom of information.

The present legislative scheme does not have specific chapters on the piracy of computer
software from the internet. The Copyright and the I.T legislations are at times regarded as
myopic in approach. At the best they take care of the problems of off-line piracy. Thus
there is need of radical overhauling of Copyright and I.T. legislations specially the
conceptual ambit, contents of rights and liability redressal